UC-NRLF 


SB 


THE 

Mercantile  License  Tax 

AN  INQUIRY 

Is  It  Constitutional  ? 

Who  are  Liable  and  How? 

The  Seven  Remedies  o!  the  Citizen 


LIBRARY 

OF    THE 

UNIVERSITY  OF  CALIFORNIA 
Cltus 


V 


THE  MERCANTILE  LICENSE  TAX. 


The  Mercantile  License  Tax 

An  Inquiry.    Is  It  Constitutional  ?    Who  Are 

Liable,  and    How  ?    The   Seven 

Remedies  of  the  Citizen. 


BY 

RAY     W.     JONES 

A  Member  of  the  Philadelphia  Bar,  ion  Chestnut  Street 
Philadelphia 


"  By  goode  disputing  the  law  shall  be  well  knowne." — YEAR  BOOK 


PHILADELPHIA  : 

J.    L.    H.    BAYNE 

PUBLISHER 

23  North  Juniper  St. 
IQOO 


COPYRIGHT,  1900,  BY  RAY  W.  JONES. 


INTRODUCTION. 


If  some  favorite  child  of  manifest  destiny  in  his 
native  Philippine  swamp  should  be  told  that  today  in 
the  Commonwealth  of  Pennsylvania  a  particular  officer 
of  the  government — and  he  not  a  legislative  officer — 
may  prescribe  at  his  sole  discretion  a  series  of  ques- 
tions to  be  answered  by  every  merchant  or  shop- 
keeper concerning  the  merchant's  private  affairs  and 
compel  the  merchant  to  expose  everything  to  certain 
agents  of  the  law,  as  they  are  called,  who  may  invade 
his  store  and  counting-house,  he  might  perhaps  be 
puzzled  to  discern  wherein  lies  the  difference  between 
the  inquisitorial  Spanish  and  the  free  American  systems. 

Were  this  special  charge  of  Christian  humanity  told 
that  another  officer  of  the  government — not  a  judicial 
officer — may  require  the  merchant  to  appear  before 
him  with  his  private  books  and  accounts,  may  make 
such  inquiries  and  examinations  as  he  sees  fit  and 
become  the  inquisitor  and  judge  of  all,  he  might 
be  pardoned  if  he  did  not  cry  out  for  American 
freedom. 

And  were  it  known  to  our  yellow  fellow  citizen  that 
a  merchant  who  declines  to  submit  to  these  exactions 
and  infringements  of  his  natural  rights  is  subjected  to 


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a  penalty  of  one  thousand  dollars,  it  might  be  better 
understood  why  he  has  preferred  the  latter  of  the 
alternatives  that  a  great  American  patriot  proposed  to 
himself — why  he  has  chosen  death  rather  than  Amer- 
ican liberty. 

Yet  this  is  the  system  attempted  to  be  set  up  by  the 
Mercantile  License  Tax  Law  of  May  2,  1899. 

Unequal, 

Local, 

Inquisitorial, 

Tyrannical, 

Infringing  upon  natural  rights, 

Interfering  with  the  inviolability  of  private  affairs, 

Open  to  fraud  and  evasion, 

Discriminating  against  the  honest, 

Productive  of  dishonesty, 

Fostering  the  spirit  of  petty  favoritisms  and  petty 
tyrannies  of  petty  officials, 

Arraying  class  against  class. 

If  it  be  urged,  in  the  language  of  European  econ- 
omists and  statesmen,  that  these  are  practical  questions 
for  the  economist  and  statesman  to  decide  and  not  for 
the  courts  ;  and  that  when  the  finances  of  a  state  are 
in  a  bad  way  and  require  money  relief,  the  end  justifies 
the  means  ;  it  may  be  answered  that  with  us,  under  the 
American  system,  no  power  of  government  is  untram- 
meled  or  unrestrained,  and  that  there  are  principles 
dearer  to  the  American  heart  and  more  jealously 


guarded  by  the  American  judiciary — to  their  honor  be 
it  said — than  the  mere  question  of  money-getting  for 
a  municipality  or  for  a  state. 

This  book  is  devoted 

(i)  To  an  inquiry  whether  the  Legislature  can  con- 
stitutionally set  up  the  odious  and  un-American  system 
attempted  to  be  set  up  by  the  Act  of  1899. 

2)  To  a  short  inquiry  as  to  some  of  the  features  of 
the  Mercantile  Tax  Law  of  the  State  without  regard 
to  the  question  of  unconstitutionality. 

(3)  To  an  inquiry  as  to  the  remedies. 

Under  the  first  head  will  be  considered : 

I.  Whether  the  taxation  attempted  to  be  imposed  is 
uniform  taxation. 

II.  Whether  the  Act  is  not  a  local  or  special  Act. 

III.  Whether  the  Act  is  not  a  forbidden  violation 
of  private  rights  and  a  forbidden  delegation  of  legis- 
lative functions. 

IV.  The   question    of   the  emoluments    of  officers 
under  the  Act. 

V.  Whether  the  Act  does  not  contain  more   than 
one  subject  not  clearly  expressed  in  the  title. 

Under  the  second  head  will  be  considered  : 

I.  Who  is  a  vender  or  dealer. 

II.  Who  is  not  a  vender  or  dealer. 

III.  The  law  in  regard  to  manufacturers  or  mechanics. 
Under  the  third  head  will  be  considered  : 

The  seven  remedies  of  the  citizen. 


CONTENTS. 

The  Act  of  May  2,  1899 


PART    I. 
THE  CONSTITUTIONALITY  OF  THE  ACT  OF  MAY  2,  1899. 

I.  Is  It  Uniform  Taxation  ? 21 

II.  Is  the  Act  Local  or  Special? 33 

III.  Is  the  Act  not  a  Forbidden  Violation  of  Private  Rights  and 

a  Forbidden  Delegation  of  Legislative  Functions  ?  .   .    .   .      43 

IV.  Emoluments  of  Officers  under  the  Act 55 

V.  Does  the  Act  Contain  More  than  One  Subject  not  Clearly 

Expressed  in  the  Title  ?. 61 

PART   II. 

SOME  FEATURES  OF  THE  MERCANTILE  TAX   LAW 

OF    THE  STATE  WITHOUT  REGARD   TO  THE 

QUESTION  OF  UNCONSTITUTIONALLY. 

VI.  Who  is  a  Vender  or  Dealer 67 

VII.  Who  is  Not  a  Vender  or  Dealer 71 

VIII.  The  Law  as  to  Manufacturers  or  Mechanics 81 

PART   III. 
REMEDIES. 
IX.  The  Seven  Remedies  of  the  Citizen 93 


(9) 


AN   ACT 

To  provide  revenue  by  imposing  a  mercantile  license  tax  on  venders  of  or 
dealers  in  goods,  wares,  and  merchandise,  and  providing  for  the  col- 
lection of  said  tax. 

Section  i.  Be  it  enacted,  &c.,  That  from  and  after  the  pas- 
sage of  this  act,  each  retail  vender  of  or  retail  dealer  in  goods, 
wares  and  merchandise  shall  pay  an  annual  mercantile  license 
tax  of  two  dollars,  and  all  persons  so  engaged  shall  pay  one 
mill  additional  on  each  dollar  of  the  whole  volume,  gross,  of 
business  transacted  annually.  Each  wholesale  vender  of  or 
wholesale  dealer  in  goods,  wares  and  merchandise  shall  pay 
an  annual  mercantile  license  tax  of  three  dollars,  and  all  per- 
sons so  engaged  shall  pay  one-half  mill  additional  on  each 
dollar  of  the  whole  volume,  gross,  of  business  transacted 
annually.  Each  dealer  in  or  vender  of  goods,  wares  or  mer- 
chandise at  any  exchange  or  board  of  trade  -shall  pay  a  mer- 
cantile license  tax  of  twenty-five  cents  on  each  thousand 
dollars  worth,  gross,  of  goods  so  sold. 

Section  2.  And  it  is  provided  that  all  persons  who  shall  sell 
to  dealers  in  or  venders  of  goods,  wares  and  merchandise,  and 
to  no  other  person  or  persons,  shall  be  taken  under  the  pro- 
visions of  this  act  to  be  wholesalers  ;  and  all  other  venders  of 
or  dealers  in  goods,  wares  and  merchandise  shall  be  retailers, 
and  shall  pay  an  annual  license  tax  as  provided  in  this  act  for 
retailers. 

Section  3.  For  the  purpose  of  carrying  into  effect  the  pro- 
visions of  this  act,  the  appointment  of  mercantile  appraisers 
shall  be  made  annually,  on  or  before  the  thirtieth  day  of 
December  of  each  year,  by  the  county  commissioners,  except 


12 

in  cities  of  the  first  class,  when  the  Auditor  General  and  the 
treasurer  of  the  city  are  authorized  and  required  to  appoint 
five  suitable,  qualified  citizens,  all  of  whom  shall  not  be  of  the 
same  political  party,  and  the  term  of  office  of  said  appraisers 
shall  be  for  three  years. 

Section  4.  The  Auditor  General  shall  be  authorized  and 
required  to  prepare  and  have  printed  proper  blanks,  to  be 
distributed  by  the  mercantile  appraisers  in  the  several  coun- 
ties to  each  vender  of  or  dealer  in  goods,  wares  and  merchan- 
dise. These  blanks  shall  be  in  the  form  prescribed  by  the 
Auditor  General,  and  shall  contain  a  request  for  such  infor- 
mation as  may  be  necessary  in  arriving  at  the  actual  amount 
of  business  transacted  by  the  vender  of  or  dealer  in  goods, 
wares  and  merchandise,  during  the  calendar  year  preceding 
that  for  which  a  license  is  required.  The  blanks  thus  prepared 
shall  contain  an  affidavit ;  and  every  dealer  subject  to  the 
provisions  of  this  act  shall  be  required  to  make  an  affidavit, 
by  oath  or  affirmation,  as  to  the  correctness  of  the  return 
made.  The  whole  volume  of  business,  including  cash  receipts 
and  merchandise  sold  on  credit,  which  is  thus  ascertained  has 
been  transacted  during  the  preceding  calendar  year,  shall  be 
the  basis  upon  which  the  license  is  to  be  rated. 

Section  5.  It  shall  be  the  duty  of  each  vender  of  or  dealer 
in  goods,  wares  and  merchandise  to  fill  up  the  blank  prepared, 
as  before  said,  by  the  Auditor  General,  and  return  the  same 
to  the  mercantile  appraiser  of  the  proper  county  within  ten 
days  from  the  date  of  the  receipt  thereof,  with  an  affidavit 
certifying  to  the  correctness  of  the  return  so  made.  If  any 
vender  of  or  dealer  in  goods,  wares  and  merchandise  refuses 
to  make  a  return,  as  required  by  this  act,  to  the  mercantile 
appraiser,  when  requested  so  to  do,  it  shall  be  the  duty  of  the 
mercantile  appraiser  to  report  the  same  immediately  to  the 


13 

county  treasurer,  whereupon  it  shall  be  the  duty  of  the  county 
treasurer  to  require  the  owner  or  business  manager  to  appear 
before  him  in  person,  with  the  books  and  accounts  of  his  mer- 
cantile establishment,  for  interrogation  and  examination  ;  and 
the  county  treasurer  shall  have  power  to  issue  subpoenas  and 
attachments,  to  be  served  by  any  constable  or  sheriff,  and 
to  compel  the  attendance  of  the  owner,  or  any  clerk,  book- 
keeper or  officer  connected  with  said  business,  to  produce 
such  books  and  papers  as  he  may  deem  expedient  to  secure 
the  information  necessary  to  ascertain  and  fix  the  amount  of 
business  transacted  during  the  calendar  year  preceding  that 
for  which  a  mercantile  license  tax  is  to  be  paid.  After  the 
county  treasurer  has  ascertained,  from  the  best  evidence  that 
can  be  secured,  the  amount  or  volume  of  business  transacted 
during  the  calendar  year  preceding  that  to  which  the  license 
is  to  be  issued,  he  shall  settle  an  account,  in  the  usual  mode, 
against  the  owner  or  owners  of  such  establishments,  for  the 
amount  of  mercantile  tax  due  under  the  classification  herein- 
before provided.  If  the  owner,  proprietor,  or  any  other  person 
connected  with  the  business,  who  is  subpoenaed,  refuses  to 
produce  the  books  and  papers  and  appear  before  the  county 
treasurer,  for  the  purpose  of  giving  the  information  required 
by  this  act  of  Assembly,  he  shall  be  liable  to  a  penalty  of  one 
thousand  dollars,  to  be  collected  in  the  manner  provided  by 
law.  The  county  treasurer  shall  settle  an  account  against 
the  owner  or  owners,  so  neglecting  or  refusing  to  make  the 
report  as  aforesaid,  and  a  certified  copy  of  said  settlement 
shall  be  forwarded  to  the  vender  of  or  dealer  in  goods,  wares 
or  merchandise,  which  settlement,  when  so  made,  shall  be 
subject  to  appeal  for  thirty  days  from  the  date  thereof,  and, 
if  not  appealed  from  within  that  time,  it  shall  be  final  and  con- 
clusive. If  an  appeal  is  not  taken  as  hereinbefore  provided, 


within  the  period  authorized  by  law,  it  shall  be  the  duty  of 
the  county  treasurer  of  the  proper  county  to  proceed  to  col- 
lect the  amount  due,  as  mercantile  taxes  are  in  other  cases 
collected. 

Section  6.  It  shall  be  the  duty  of  each  mercantile  ap- 
praiser, appointed  under  the  provisions  of  this  act,  to  forward 
by  mail,  at  least  ten  days  prior  to  the  date  when  he  makes  a 
personal  visit  to  the  place  of  business  of  every  person  whom 
he  is  required  by  law  to  ascertain  and  assess,  a  blank  prepared 
for  distribution  by  the  Auditor  General  as  hereinbefore  pro- 
vided. It  shall  be  the  further  duty  of  the  mercantile  ap- 
praisers, after  mailing  the  blank  as  hereinbefore  provided,  in 
the  several  cities  and  counties  of  this  State,  personally  to  visit 
the  store,  or  other  place  of  business,  of  every  vender  of  or 
dealer  in  goods,  wares  and  merchandise,  and,  at  the  time  of 
such  visit,  to  require  each  vender  or  dealer  to  make  a  return, 
under  oath  or  affirmation,  of  the  goods  sold  for  the  preceding 
calendar  year,  on  the  blank  forwarded,  and  he  is  hereby  em- 
powered to  administer  an  oath  or  affirmation  for  that  purpose. 
If  the  mercantile  appraiser  is  dissatisfied  with  the  return,  so 
made  by  the  vender  or  dealer,  he  shall  ascertain  and  assess 
the  mercantile  license  tax  according  to  the  classification  so 
made.  He  shall  also  leave  a  written  or  printed  notice,  to  be 
prepared  and  furnished  by  the  Auditor  General,  specifying 
the  classification  and  amount  of  license  money  to  be  paid  by 
such  person  to  this  State,  and  also  the  time  and  place,  when 
and  where,  an  appeal  will  be  held  as  required  by  law.  The 
appeal  shall  be  held  by  the  county  treasurer,  acting  in  con- 
junction with  the  mercantile  appraiser,  at  such  date  as  shall 
conform  with  law  in  all  counties,  except  where  there  is  a 
board  of  mercantile  appraisers,  in  which  case  the  board  shall 
hear  all  appeals.  Any  vender  or  dealer,  subject  to  the  pro- 


visions  of  this  act,  who  is  dissatisfied  with  the  rating  so  made 
by  the  mercantile  appraiser,  shall  have  the  right  of  appeal  to 
the  mercantile  appraiser  and  county  treasurer,  who  are  re- 
quired to  hear  him  on  the  day  so  fixed  for  the  appeal ;  if  the 
vender  or  dealer  is  still  dissatisfied  with  the  finding  of  the 
county  treasurer  and  mercantile  appraiser,  or  board  of  ap- 
praisers, in  reference  to  the  proper  classification  of  said  ven- 
der or  dealer,  he  shall  have  the  right  of  appeal  to  the  court  of 
common  pleas  of  the  proper  county,  which  appeal  the  said 
court  is  required  to  hear  and  determine  within  twenty  days 
after  such  appeal  shall  be  taken,  or  at  the  next  sitting  thereof. 
If  any  person  fails  to  attend  the  appeal  before  the  county 
treasurer  and  mercantile  appraiser,  board  of  appraisers,  or 
the  court,  he  shall  not  thereafter  be  permitted,  in  a  suit  for 
the  recovery  of  said  mercantile  license  tax,  to  set  up  as  a  de- 
fence, either  that  he  is  not  a  vender  of  or  dealer  in  goods, 
wares  or  merchandise,  or  any  other  ground  of  defence,  which 
might  have  been  heard  and  determined  either  by  said  county 
treasurer  and  mercantile  appraiser,  board  of  appraisers  or  the 
court  of  common  pleas,  on  appeal,  as  aforesaid. 

Section  7.  It  shall  be  the  duty  of  every  city  arid  county 
treasurer  to  sue  for  the  recovery  of  all  licenses,  duly  returned 
to  him  by  the  mercantile  appraiser,  if  not  paid  on  or  before 
the  first  day  of  July  in  each  and  every  year,  within  ten  days 
after  that  date  :  Provided  however,  That  if  the  county  treas- 
urer is  satisfied  that  the  mercantile  license  tax,  for  any  good 
and  sufficient  reason,  cannot  be  collected,  he  shall  make  a 
report  to  the  Auditor  General  of  all  the  facts  connected  with 
the  case,  and  the  Auditor  General,  upon  investigation,  may 
exonerate  him  from  the  payment  of  said  tax,  and  in  all  such 
cases  suit  shall  not  be  brought.  The  county  treasurer  shall 
at  the  expiration  of  each  month,  forward  to  the  State  Treas- 
urer the  amount  of  mercantile  tax  received  by  him. 


i6 

Section  8.  Any  mercantile  appraiser  who  shall  neglect  or 
refuse  to  visit  the  store,  or  other  place  of  business,  of  any 
person  ascertained  and  assessed  by  him  for  license,  and  to 
furnish  such  person  with  a  written  or  printed  notice  of  his 
classification,  amount  of  license,  and  time  and  place  of  hold- 
ing appeal,  as  required  by  the  fifth  section  of  this  act,  shall 
pay  a  penalty  of  one  hundred  dollars,  for  the  use  of  the  Com- 
monwealth, to  be  recovered  as  debts  of  a  like  amount  are 
recoverable,  on  due  proof  of  such  neglect  or  refusal  being 
made  according  to  law. 

Section  9.  It  shall  be  the  duty  of  every  mercantile  ap- 
praiser, appointed  under  this  act,  on  or  before  the  first  day  of 
May,  in  each  year,  to  certify  to  the  county  treasurer  a  correct 
list  of  all  venders  or  dealers  in  goods,  wares  and  merchandise, 
assessed  or  to  be  assessed  with  a  mercantile  tax  in  the  county 
for  which  he  is  appointed,  giving  the  names  and  postoffice 
addresses  of  the  venders  or  dealers  so  returned,  the  classifi- 
cation, and  amount  of  license  due  by  each.  The  list  fur- 
nished by  the  mercantile  appraiser  to  the  county  treasurer 
shall  not  contain  the  name  or  names  of  venders  or  dealers  who 
are  not  subject  to  the  payment  of  the  mercantile  license  tax. 
This  list  shall  be  kept  by  the  county  treasurer,  for  his  guid- 
ance in  hearing  appeals  and  collecting  said  license  taxes. 
After  appeals  have  been  heard  and  exonerations  made,  the 
corrected  list  shall  then  be  certified  by  the  county  treasurer 
to  the  Auditor  General,  on  or  before  the  first  day  of  July,  of 
each  year. 

Section  10.  The  rate  of  commission  allowed  county  or 
city  treasurers,  the  fees  collected  for  the  county  or  city 
treasurers  and  mercantile  appraisers,  also  the  rate  per  mile 
paid  mercantile  appraisers,  and  all  provisions  of  law  with  ref- 
erence to  the  advertising  of  said  lists,  shall  be  and  remain 


17 

the  same  as  now  fixed  by  existing  law ;  and  after  such  publi- 
cation of  advertisement  shall  have  been  properly  made,  it 
shall  be  the  duty  of  the  constable  of  his  respective  ward,  dis- 
trict or  township  to  compare  the  list,  and  report  to  the  county 
or  city  treasurer  all  omissions  found,  and  for  such  service 
the  constable  shall  receive  a  fee  of  fifty  cents  for  each  and 
every  omission  so  reported. 

Section  n.  Each  dealer  who  comes  under  the  provisions  of 
this  act  shall  cause  to  be  placed,  permanently,  at  the  entrance 
•of  his  or  their  place  of  business,  a  sign  describing  the  busi- 
ness in  which  the  party  is  engaged,  with  his  or  their  name  or 
names  upon  the  same,  such  sign  ;  and  a  violation  of  the  pro- 
visions of  this  section  shall  be  punishable  with  a  fine  of  ten 
dollars,  said  fine  to  be  collected  as  fines  of  like  amount  are 
now  by  the  law  collected,  and  to  be  paid  into  the  county 
treasury. 

Section  12.  All  acts  or  parts  of  acts,  general,  special  or  local, 
inconsistent  herewith  be  and  the  same  are  hereby  repealed. 

Approved — The  2d  day  of  May,  A.  D.  1899. 

WILLIAM  A.  STONE. 

Pamphlet  Laws,  page  184. 


PART  I. 

THE  CONSTITUTIONALITY  OF  THE  ACT 
OF  MAY  2,  1899. 


I. 

Is  IT  UNIFORM  TAXATION? 
SECTIONS  i  AND  2. 


I. 

While  courts  cannot  review  the  wisdom  or  expe- 
diency of  legislative  enactments  or  the  motives  of 
their  framers,  they  can  pronounce  enactments  void 
which  violate  prohibitions,  expressly  declared  or 
clearly  implied,  of  the  Constitution. 

Does  the  Act  of  1 899  offend  in  this  respect  ? 

Is  it  unconstitutional  ? 

Will  the  courts  declare  it  or  any  part  of  it  void  ? 

When  the  city  of  Williamsport  attempted  to  impose 
an  occupation  tax  based  upon  the  amount  earned  by 
each  individual  in  his  occupation,  the  Supreme  Court 
said  in  1885  : 

The  assessment  upon  occupations  is  hopelessly, 
incurably  vicious.  The  plain  mandate  of  the  Consti- 
tution has  been  wholly  ignored.  It  is  in  direct  viola- 
tion of  Article  IX,  Section  i,  which  provides  that  "all 
taxes  shall  be  uniform  upon  the  same  class  of  sub- 
jects." The  organic  law  requires  not  merely  that  there 
shall  be  no  exemption  of  persons  or  classes,  but  that 
upon  persons  and  classes  the  tax  shall  be  uniform. 
Thus,  in  levying  a  tax  upon  occupations,  a  tax  of  $100 
upon  every  person  having  a  known  occupation  would 
be  uniform.  But  what  uniformity  is  there  in  laying  an 
occupation  tax  of  $100  upon  A  and  a  like  levy  of  $200 

(23) 


24 

upon  B,  the  occupation  of  each  being  similar?  The 
answer,  and  the  only  one  that  can  be  urged,  is  that  B 
earns  double  the  amount  that  A  does.  This  brings 
us  at  once  to  the  vice  underlying  the  whole  case. 
Under  the  guise  of  an  occupation  tax  the  city  of  Wil- 
liamsport  has  levied  and  is  seeking  to  collect  an  income 
tax.  Of  all  forms  of  taxation  this  is  the  most  odious 
to  the  American  people.  It  was  submitted  to  during 
the  war  from  a  feeling  of  patriotism  in  view  of  the 
great  financial  strain  to  which  the  country  was  sub- 
jected. But  when  no  such  cause  exists  there  is  little 
excuse  for  imposing  such  an  obnoxious  burden. 

Bangor's  Appeal,  109  Pennsylvania  State  Reports, 

79  (1885). 

Accordingly,  when  the  city  of  Allentown  imposed  a 
license  tax  upon  dealers,  graduated  by  the  estimated 
amount  of  their  gross  annual  sales,  a  dealer,  relying 
upon  the  decision  in  Bangor's  Appeal,  appealed  to  the 
courts,  contending  that  the  grading  of  the  license  tax 
according  to  the  amount  of  the  annual  gross  sales  was 
illegal  because  not  uniform.  But  the  Court  held  that 
such  a  tax  was 

NOT    A     TAXING     OF    THE     SELLER, 

but 

A  TAXING    OF     HIS    PROPERTY, 

and  that 

Being  a  taxation  of  a  thing,  and  not  of  a  person, 
the  classification  makes  uniformity  the  same  as  in  the 
case  of  money  at  interest  or  real  estate. 


25 

Allentown  vs.  Gross,   132  Pennsylvania  State  Re- 
ports, 319  (1890), 
followed  in 

Williamsport  vs.  Wenner,  172  Pennsylvania  State 
Reports,  173  (1896). 

The  first  two  clauses  of  the  first  section  of  the  Act 
of  1899  are  : 

"Each  retail  vender  of  or  retail  dealer  in  goods, 
wares  and  merchandise  shall  pay  an  annual  mercantile 
license  tax  of  two  dollars,  and  all  persons  so  engaged 
shall  pay  one  mill  additional  on  each  dollar  of  the 
whole  volume  gross  of  business  transacted  annually. 
Each  wholesale  vender  of  or  wholesale  dealer  in  goods, 
wares  and  merchandise,  shall  pay  an  annual  mercantile 
license  tax  of  three  dollars,  and  all  persons  so  engaged 
shall  pay  one  half  mill  additional  on  each  dollar  of  the 
whole  volume  gross  of  business  transacted  annually." 

This  is  a  tax  graduated  by  the  estimated  amount  of 
gross  annual  sales. 

It  is  therefore 

NOT     A    TAXING     OF     THE     SELLER, 

but 

A     TAXING    OF     HIS     PROPERTY. 

As  such  it  must  stand  or  fall. 

There  is  no  doubt  of  the  right  of  the  Legislature  to 
classify  property  as  the  subjects  of  taxation. 

But  all  the  members  of  each  class  must  be  treated 
alike. 


26 

Pittsburg  vs.  Coyle,  165  Pennsylvania  State  Reports, 
61  (1894). 

So,  the  Legislature  may  legally  tax  the  property  of 
merchants  and  shopkeepers  and  exempt  the  property 
of  all  other  citizens,  however  unfair  and  unequal,  and 
however  dangerous  to  the  political  lives  of  the  legis- 
lators such  taxation  may  be. 

But  whether  the  Legislature  may  discriminate  be- 
tween the  property  of  the  wholesale  and  retail  dealer 
in  the  same  commodity  and  tax  the  property  of  the 
retailer  twice  what  it  taxes  the  property  of  the  whole- 
saler, is  a  far  different  and,  to  say  the  least,  a  most 
doubtful  question,  especially  in  this  day  of  the  great 
department  stores,  whose  volume  gross  of  business 
transacted  annually  exceeds  many  times  over  that  of 
the  largest  wholesale  houses. 

But  this  is  not  the  question  which  arises  in  the  con- 
struction of  the  Act  of  1899,  f°r  tne  Legislature,  dis- 
carding the  ordinary  use  of  language,  declares  in  the 
second  section  the  meaning  of  the  first  to  be  "  that  all 
persons  who  shall  sell  to  dealers  in  or  venders  of 
goods,  wares  and  merchandise,  and  to  no  other  person 
or  persons,  shall  be  taken  under  the  provisions  of  this 
act  (to)  be  wholesalers,  and  all  other  venders  of  or 
dealers  in  goods,  wares  and  merchandise  shall  be 
retailers  and  shall  pay  an  annual  license  tax  as  pro- 
vided in  this  act  for  retailers."  The  distinction  thus 
set  up  between  the  "wholesaler"  and  the  " retailer" 


27 

of  the  Act  depends,  not  upon  the  size  or  the  quantity 
of  the  individual  sales,  but  solely  upon  the  persons  to 
whom  the  sales  are  made.  A  great  yarn  house,  there- 
fore, which  makes  a  sale  of  tens  of  thousands  of  dol- 
lars of  warps  or  filling  to  a  great  carpet  manufacturer 
by  that  sale  becomes  a  "retailer"  and  liable  to  pay 
twice  as  much  on  the  whole  volume  gross  of  its  busi- 
ness as  its  competitor,  which  confines  itself  to  sales  to 
dealers ;  a  dealer  in  plumbers'  supplies  who  sells  to  a 
plumber  must  pay  twice  as  much  as  his  competitor 
who  does  not ;  a  paper  house  which  sells  to  a  paper- 
hanger  must  pay  twice  as  much  as  one  which  sells 
only  to  paper  dealers. 

Two  mercantile  houses  each  carry  on  a  business  of 
one  million  dollars  a  year  in  the  same  commodity. 
One  makes  a  sale,  large  or  small,  to  a  manufacturer  or 
a  consumer ;  the  other  confines  its  sales  to  dealers. 
The  latter  will  pay  a  mercantile  license  tax  of  five 
hundred  dollars,  while  the  former  will  have  to  pay  one 
thousand  dollars,  simply  and  solely  because  it  has 
made  a  sale  to  a  manufacturer  or  a  consumer,  and 
this  without  regard  to  the  size  or  amount  of  the  sale. 

Let  us  now  re-read  the  clauses  of  the  first  section, 
in  the  light  of  the  second  section,  and  the  ruling  of 
the  Supreme  Court  that  the  taxation  is  the  taxation  of 
the  property  of  the  dealer.  They  will  read:  "All 
dealers  who  shall  sell  to  manufacturers  or  any  other 
person  or  persons  than  dealers  shall  pay  a  tax  of  one 


28 

mill  on  each  dollar  of  their  property.  Each  dealer 
who  shall  sell  to  dealers  and  to  no  other  person  or  per- 
sons, shall  pay  a  tax  of  one-half  mill  on  each  dollar  of 
his  property."  And  bearing  in  mind  that  the  Supreme 
Court  has  said,  in  Allen  town  vs.  Gross  (above),  that  this 
taxation  is  the  same  as  in  the  case  of  money  at  inter- 
est, or  real  estate,  the  re-read  clauses  are  the  same  as 
if  they  read:  "All  dealers  who  shall  sell  to  manufac- 
turers or  any  other  person  or  persons  than  dealers, 
shall  pay  a  tax  of  one  mill  on  each  dollar  of  their  real 
estate.  Each  dealer  who  shall  sell  to  dealers  and  to 
no  other  person  or  persons  shall  pay  a  tax  of  one 
half  mill  on  each  dollar  of  his  real  estate." 

Surely,  it  cannot  be  seriously  said  that  this  does  not 
conflict  with  Article  IX,  Sections  i  and  2  of  the  Con- 
stitution, which  declare  that  "all  taxes  shall  be  uni- 
form upon  the  same  classes  of  subjects,"  and  "all 
laws  exempting  property  from  taxation  .  .  .  shall 
be  void."  If  it  does  conflict,  the  Act  of  1899  must  fall, 
no  matter  what  inconvenience  may  result  to  the  State. 
This  portion  of  the  Constitution  is  too  important  and 
valuable  to  be  overridden  by  the  Legislature  or  frit- 
tered away  by  judicial  construction.  It  was  intended 
to  and  does  sweep  away  forever  the  power  of  the 
Legislature  to  impose  unequal  burdens  upon  the 
people  under  the  form  of  taxation.  The  evils  which 
led  up  to  its  incorporation  into  the  organic  law  are 
well  known.  The  burden  of  maintaining  the  State 


29 

has  been  in  repeated  instances  lifted  from  the  shoul- 
ders of  favored  classes  and  thrown  upon  the  remainder 
of  the  community.  This  was  done  by  means  of  favor- 
itism and  class  legislation.  Article  IX  of  the  Constitu- 
tion was  intended  to  cut  up  this  system  by  the  roots, 
and  we  shall  have  no  more  of  it  if  the  legislative  and 
judicial  departments  of  the  Government  perform  their 
full  duty  in  giving  effect  to  that  instrument.  The 
taxing  power  of  the  State  is  great  and  searching. 
Within  the  limits  of  the  Constitution  it  is  bounded 
only  by  the  necessities  of  the  State.  This  must  be  so 
or  the  State  might  be  without  the  means  to  sustain 
itself;  to  repel  aggression  from  without  or  to  suppress 
disorder  within.  So  long  as  it  lays  the  burden  upon 
all  alike  there  is  hardly  a  limit  to  this  power.  It  may 
take  from  the  people  what  its  necessities  demand. 
The  power  of  the  State  is  conceded  to  select  its  sub- 
jects of  taxation.  It  may  tax  mortgages  or  it  may 
omit  to  tax  them.  It  may  tax  horses  or  it  may  omit 
to  tax  them.  But  the  tax,  upon  whatever  laid, 
must  be  uniform.  Thus  it  must  be  laid  upon  all  tax- 
payers alike.  It  cannot  tax  A  on  his  mortgages  or 
his  horses  and  exempt  B  from  a  like  tax ;  or  tax  B 
half  as  much  as  A.  Each  must  bear  his  equal  share 
of  the  public  burdens.  This  is  because  the  Constitu- 
tion provides  that  all  taxes  shall  be  uniform. 

Fox's  Appeal,  112  Pennsylvania  State  Reports,  337 
(1886). 


30 

The  question  is  not  whether  the  Legislature  can 
select  particular  classes  of  property  for  taxation,  whether 
.it  can  tax  one  article  at  one  rate  and  another  article 
at  a  different  rate,  but  whether  it  can  prescribe  rules 
of  taxation  upon  like  property  which  shall  vary  as  it  is 
sold  to  one  person  or  to  another  person. 

It  may  be  difficult,  if  not  impracticable  to  obtain  ab- 
solute equality  between  all  classes  of  property.  That 
is  recognized  ;  but  there  must  be  absolute  equality 
between  persons  or  owners  of  the  same  kind  of  prop- 
erty. The  taxing  power  may  select  land  and  omit 
personal  property,  or  select  any  particular  kind  of 
personal  property  and  omit  land,  and  the  courts  can- 
not interfere  ;  but  on  whatever  subject  the  tax  is 
imposed,  it  must  apply  equally  and  uniformly  to 
all  owning  similar  property. 

As  Mr.  Edmunds  said  in  his  argument  in  the  income 
tax  cases:  "A  tax  on  polls  does  not  distinguish  be- 
tween tall  and  short  men  ;  or  their  wealth  or  health. 
Congress  has  passed  a  law  that  people  coming  by  ves- 
sel shall  pay  a  tax  ;  but  suppose  Congress  had  said 
that  in  the  port  of  New  York  the  people  coming  by 
one  line,  the  Cunard  Line,  should  pay  ten  dollars  ;  and 
that  the  people  coming  by  the  International  Line 
(the  Paris  and  New  York)  into  the  same  port  should 
pay  fifteen  dollars  a  head.  What  do  you  think  would 
have  been  the  decision  in  that  case  ?  Would  my 
brother  Carter  say  that  was  uniform  ?  I  take  it  not. 


31 

You  would  say  Congress  had  no  power  to  do  anything 
of  the  kind.  ...  It  is  true  that  the  attainment  of  per- 
fect equality  in  taxation  is  a  baseless  dream,  as  has 
been  said.  But  it  does  not  follow  that  the  legislative 
power  can  lawfully  and  purposely  go  to  the  other 
extreme  and  impose  taxes  broadly  designed  to  be 
unequal,  and  by  false  and  arbitrary  classification  set 
one  great  body  of  citizens  in  conflict  with  another." 

For  if  the  Legislature  can  tax  its  so-called  "  retailer  " 
twice  as  much  as  its  so-called  "wholesaler"  it  can  tax 
him  fifty  times  as  much. 

The  unconstitutionality  of  the  Act  becomes  even 
more  obvious  when  we  examine  the  third  and  last 
clause  of  the  first  section  :  "  Each  dealer  in  or  vender 
of  goods,  wares  or  merchandise,  at  any  exchange  or 
board  of  trade,  shall  pay  a  mercantile  license  tax  of 
twenty-five  cents  on  each  thousand  dollars'  worth  gross 
of  goods  so  sold." 

Adding  this  clause  the  first  section  might  be  read 
as  a  whole :  "  All  dealers  who  shall  sell  to  manufac- 
turers or  any  other  person  or  persons  than  dealers 
shall  pay  a  tax  of  one  mill  on  each  dollar  of  their 
property.  Each  dealer  who  shall  sell  to  dealers  and 
to  no  other  person  or  persons  shall  pay  a  tax  of  one- 
half  mill  on  each  dollar  of  his  property.  Provided, 
that  if  the  first  mentioned  dealer  shall  sell  at  an 
exchange  or  board  of  trade  he  shall  be  exempt  from 
three-fourths  of  the  tax  on  his  property,  while  if  the 


32 

second  mentioned  dealer  do   the  same  thing  he  shall 
be  exempt  from  one-half  of  the  tax  on  his  property." 

An  unconstitutional  act  is  not  a  law  ;  it  confers  no 
rights,  it  imposes  no  duties,  it  affords  no  protection, 
it  creates  no  office  ;  it  is  in  legal  contemplation  as 
inoperative  as  though  it  had  never  been  passed. 

Poindexter  vs.  Greenhow,  114  United  States  Re- 
ports, 270. 

Cooley's  Constitutional  Limitations,  Chapter  7. 

It  would  be  no  answer  to  say,  even  if  it  were  true, 
that  the  whole  volume  gross  of  business  transacted 
annually  by  a  wholesaler  is  greater  than  that  by  a 
retailer.  It  is  the  dealer's  property,  be  it  small  or 
great ;  be  he  rich  or  poor. 

But  it  is  notorious  that  the  contrary  is  to-day  the 
truth,  and  well  known  to  every  casual  observer  of  the 
Senatorial  contest  in  our  State  that  a  great  motive 
for  the  preparation  of  the  cunningly  devised  Act  of 
1899  was  to  injure  and  retard  the  progress  and  success 
of  our  great  retail  enterprises.  Such  an  attempt  was 
never  before  perpetrated  in  the  history  of  the  State. 
It  cannot  hide  itself  under  this  flimsy  disguise  of 
pretence  of  classification.  The  true  rule  is  laid  down 
by  Justice  Miller  of  the  United  States  Supreme  Court 
in  his  Lectures  on  the  Constitution  (New  York,  1891)  : 
"  The  tax  must  be  uniform  on  the  particular  article  ; 
and  it  is  uniform  within  the  constitutional  requirement 
if  it  is  made  to  bear  the  same  percentage." 


II. 

Is  THE  ACT  LOCAL  OR  SPECIAL? 

SECTION  3. 


II. 

The  third  section  declares  : 

"For  the  purpose  of  carrying  into  effect  the  pro- 
visions of  this  Act,  the  appointment  of  mercantile 
appraisers  shall  be  made  annually  on  or  before  the 
thirtieth  day  of  December  of  each  year,  by  the  county 
commissioners,  except  in  cities  of  the  first  class,  where 
the  Auditor  General  and  the  treasurer  of  the  city  are 
authorized  and  required  to  appoint  five  suitable,  quali- 
fied citizens,  all  of  whom  shall  not  be  of  the  same 
political  party,  and  the  term  of  office  of  said  appraisers 
shall  be  for  three  years." 

It  provides  for  the  appointment  of  the  mercantile 
appraisers  annually  by  the  county  commissioners.  It 
then  in  express  words  excepts  from  its  operation  cities 
of  the  first  class  where  the  auditor  general  and  the 
treasurer  of  the  city  are  authorized  and  required  to 
appoint  five  suitable,  qualified  citizens  for  three  years. 

Article  III,  Section  7  of  the  Constitution  declares : 
"The  General  Assembly  shall  not  pass  any  local  or 
special  law  ....  regulating  the  affairs  of  counties, 
cities,  townships,  wards,  boroughs  or  school  districts 
....  creating  offices  or  prescribing  the  powers  and 
duties  of  officers  in  counties,  cities,  boroughs,  town- 
ships, election  or  school  districts." 

(35) 


36 

Notwithstanding  the  prohibition  of  the  Constitution 
it  has  been  determined  by  the  Supreme  Court  ex 
necessitate  rei  that  the  Legislature  may  classify  cities  for 
certain  purposes  of  legislation.  But  the  purposes  for 
which  legislation  according  to  such  classification  can  be 
upheld  have  been  defined  as  comprising  only  those 
relating  to  the  organization  or  administration  of  their 
municipal  governments.  In  other  words,  while  the  ap- 
proved classification  of  cities  authorizes  all  necessary 
legislation  for  them  as  cities  in  the  management  of 
their  municipal  affairs  ;  on  the  other  hand,  they  are 
under  the  Constitution  and  must  remain  part  of  the 
State  of  Pennsylvania  for  all  purposes  not  municipal, 
and  subject  only  to  general  laws  on  all  subjects  not  of 
municipal  concern. 

Many  efforts  have  been  made  to  make  the  classifi- 
cation of  cities  for  municipal  purposes  serve  as  a 
warrant  for  local  legislation  on  subjects  having  no 
possible  relation  to  municipal  government,  but  the 
courts  have  uniformlly  refused  to  sanction  them. 

Mercantile  appraisers  are  not  municipal  officers. 

They  are  not  invested  with  any  municipal  powers. 

They  are  not  charged  with  the  performance  of  any 
municipal  function. 

They  are  not  under  the  control  of  the  municipal 
legislature. 

They  are  not  under  the  control  of  the  municipal 
executive. 


37 

They  have  nothing  to  do  with  municipal  taxation. 

They  are  not  paid  by  the  municipality. 

They  are  the  paid  officers  of  the  Commonwealth, 
engaged  in  the  collection  for  the  Commonwealth  of  a 
tax  by  the  Commonwealth  assessed,  as  the  Common- 
wealth's servants. 

In  1878  an  attempt  was  made  by  the  Legislature  to 
classify  counties  for  the  purpose  of  regulating  fees  of 
officers.  It  was  declared  unconstitutional  by  the 
Supreme  Court  eight  years  afterward.  Referring  to 
the  section  of  the  Constitution  under  discussion,  Chief 
Justice  Paxson  said:  "It  was  a  wise  provision  and 
will  be  sternly  enforced.  It  is  our  purpose  to  adhere 
rigidly  to  that  instrument  that  the  people  may  not  be 
deprived  of  its  benefits.  It  ought  not  to  be  necessary 
for  this  Court  to  make  this  judicial  declaration,  but  it 
is  proper  to  do  so  in  view  of  the  amount  of  legislation 
which  is  periodically  placed  upon  the  statute  books  in 
entire  disregard  of  the  fundamental  law.  Much  of 
this  legislation  may  remain  unchallenged  for  years, 
only  to  be  overturned  when  it  reaches  this  Court.  In 
the  meantime  parties  may  have  acted  upon  it,  rights 
may  have  grown  up,  and  the  inconvenience  and  loss 
entailed  thereby  may  not  be  inconsiderable.  As  we 
view  it,  this  note  of  warning  at  this  time  is  needed.  .  .  . 
If  it  can  exclude  Philadelphia  and  Pittsburgh,  it  can 
exclude  every  other  county  in  the  State,  but  the  one 
county  seeking  such  special  or  local  legislation.  .  .  . 


38 

It  is  special  legislation  under  the  attempted  disguise 
of  a  general  law.  Of  all  forms  of  special  legislation 
this  is  the  most  vicious." 

Morrison  vs.  Bachert,  112  Pennsylvania  State  Re- 
ports, 322  (1886). 

In  1888  an  Act  relating  to  street  railways  in  cities 
of  the  third  class  was  held  to  be  local,  and  therefore 
unconstitutional,  not  relating  to  municipal  affairs  of 
cities  of  the  third  class,  but  to  certain  corporations  that 
happened  to  be  located  within  them. 

Weinman  vs.  Railway  Co.,  118  Pennsylvania  State 
Reports,  192  (1888). 

The  cities  in  this  State  are  divided  into  classes  by 
the  Act  of  May  23,  1874,  Pamphlet  Laws  230.  The 
object  of  the  classification  is  stated  in  the  body  of  the 
act  in  these  words  :  "  For  the  exercise  of  certain  cor- 
porate  powers,  and  having  respect  to  the  number, 
character,  powers  and  duties  of  certain  officers 
thereof."  The  first  class  embraced  cities  having  a 
population  of  300,000  and  upwards ;  the  second, 
those  whose  population  exceeded  100,000  and  did 
not  exceed  300,000  ;  the  third,  those  whose  popula- 
tion was  less  than  100,000. 

The  object  of  classification  being  thus  clearly  stated 
in  the  body  of  the  act  which  ordains  it,  we  are  not  left 
to  conjecture.  The  Legislature  has  declared  its  object 
in  providing  a  system  of  classification  to  be  to  facilitate 
the  convenient  exercise  of  certain  corporate  powers 


V       39 

necessary  for  the  proper  regulation  of  municipal  affairs. 
It  does  not  authorize  legislation  on  subjects  not  relating 
to  municipal  affairs.  As  was  said  by  the  late  Justice 
Williams,  in  In  re  Ruan  Street,  132  Pennsylvania  State 
Reports,  257  (1890),  declaring  the  Act  of  May  6, 
1887,  Pamphlet  Laws,  page  87,  which  provided  a  pro- 
cedure in  road  cases  for  cities  of  the  first  class, 
unlike  that  in  use  in  the  rest  of  the  State,  unconsti- 
tutional :  "  These  are  the  only  purposes  contemplated 
by  the  Legislature.  They  are  the  only  purposes  for 
which  classification  seems  desirable,  they  are  the  only 
purposes  for  which  it  has  been  upheld.  .  .  .  All 
legislation  not  relating  to  the  exercise  of  corporate 
powers  or  to  corporate  officers  and  their  powers,  as 
cities,  is  unauthorized  by  classification." 

The  collection  of  mercantile  taxes  is  certainly  not 
one  of  the  corporate  powers  of  cities  of  the  first  class, 
and  mercantile  appraisers  are  certainly  not  corporate 
officers  thereof. 

To  the  same  effect  are  the  cases  of  Van  Loon  vs. 
Eagle,  171  Pennsylvania  State  Reports  157,  decided 
in  1895,  and  Chalfant  vs.  Edwards,  173  Pennsylvania 
State  Reports,  246,  decided  in  1896,  in  both  of  which 
the  same  learned  Justice  Williams  affirmed  and  vindi- 
cated the  reasoning  of  the  earlier  cases. 

The  only  conceivable  reason  for  the  exception  of 
Philadelphia  would  be  its  greater  population.  But  is 
there  any  necessity  for  classification  springing  from 
this  peculiarity?  Why  does  difference  in  population 


40 

make  it  necessary  to  have  a  different  law  for  Phila- 
delphia? Why  may  not  a  general  law  be  framed 
adapted  to  the  needs  of  all  ?  It  is  difficult  to  discover 
an  answer  to  this  question.  If  the  law  for  the  rest  of 
the  State  is  inadequate  for  a  city  like  Philadelphia,  how 
is  it  adequate  for  Pittsburgh,  with  its  295,000  inhabi- 
tants ?  And  even  if  it  is  inadequate  it  does  not  follow 
that  a  general  law  could  not  be  framed  which  would 
meet  the  needs  of  Philadelphia  and  Pittsburgh  and  still 
not  be  inadapted  to  the  wants  of  the  smaller  cities.  It 
is  certainly  not  impracticable  to  form  a  general  law, 
and  the  very  purpose  of  Article  III,  Section  7,  of 
the  Constitution  was,  not  to  limit  legislation,  but 
merely  to  prohibit  the  doing  by  local  or  special  laws 
that  which  can  be  accomplished  by  general  laws.  It 
relates  not  to  the  substance,  but  to  the  method  of 
legislation  and  imperatively  demands  the  enactment 
of  general  instead  of  local  or  special  laws  whenever 
the  former  are  at  all  practicable. 

Avars'  Appeal,  122  Pennsylvania  State  Reports, 
266  (1889). 

We  are  not  called  upon,  however,  to  show  the  ne- 
cessity or  vindicate  the  wisdom  of  the  constitutional 
requirement.  It  is  enough  for  us  to  know  that  it  is 
an  express  mandate  of  the  organic  law  which  the 
Legislature  ought  to  obey  and  courts  are  bound  to 
enforce. 

But  even  conceding  for  a  moment  for  the  sake  of 
argument  that  the  Act  of  1899  does  not  conflict  with 


41 

Article  III,  Section  7,  it  can  scarcely  be  denied  that 
the  mercantile  license  tax  is  a  tax  and  levied  by  the 
authority  of  the  State,  as  the  Act  itself  as  well  as  the 
Supreme  Court  has  declared.  Now  Article  IX, 
Section  i,  of  the  Constitution  declares  that  all  taxes 
shall  be  levied  and  collected  under  general  laws  : 

"  All  taxes  shall  be  uniform  upon  the  same  class  of 
subjects  within  the  territorial  limits  of  the  authority 
levying  the  tax  and  shall  be  levied  and  collected  under 
general  laws." 

"Thus,"  said  Chief  Justice  Sterrett,  in  Ayars' 
Appeal,  122  Pennsylvania  State  Reports,  266  (1889), 
speaking  of  this  clause,  "  by  express  mandate  .  .  . 
all  taxes  must  be  levied  and  collected  under  general 
and  not  special  or  local  laws."  And  again  he  said  : 
"It  is  expressly  required,  as  we  have  seen,  that  *  all 
taxes  shall  be  levied  and  collected  under  general  laws'  ; 
and  it  is  impossible  to  suggest  any  valid  reason  why 
they  should  not  be  thus  levied  and  collected.  When 
the  present  Constitution  was  adopted  local  and  special 
laws  relating  to  .  .  .  assessment  and  collection  of  taxes 
were  in  force  in  some  of  the  cities  and  remained 
unaffected  by  that  instrument ;  but  that  fact  will  not 
justify  the  substitution  of  other  local  or  special  laws 
in  their  stead.  When  new  legislation  is  resorted  to, 
it  must  conform  to  the  requirements  of  the  Consti- 
tution." 

The  only  fair  conclusion  from  these  premises  seems 
to  be  that  the  Act  of  1899  is  unconstitutional  and  void. 


III. 


Is  THE  ACT  NOT  A  FORBIDDEN  VIOLATION  OF  PRIVATE 

RIGHTS  AND  A  FORBIDDEN  DELEGATION  OF 

LEGISLATIVE  FUNCTIONS. 

SECTIONS  4  AND  5. 


III. 

The  Constitution  of  the  United  States  declares  that 
the  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers  and  effects  against  unreasonable 
searches  and  seizures  shall  not  be  violated. 

The  Constitution  of  Pennsylvania  declares  that  all. 
men  have  certain  inherent  and  indefeasible  rights, 
among  which  are  those  of  acquiring,  possessing  and 
protecting  property  ;  and  that  the  people  shall  be 
secure  in  their  persons,  houses,  papers  and  posses- 
sions from  unreasonable  searches  and  seizures. 

While  the  fifth  section  of  the  Act  of  1899  declares 
that  in  Pennsylvania  each  dealer  shall  fill  up  and 
swear  to  certain  undescribed  blanks  to  be  prepared 
after  the  Act  goes  into  effect  by  the  auditor  general 
for  such  information  as  to  the  dealers'  private  business 
as  the  auditor  general  may  then  prescribe  ;  and  that 
upon  the  dealer's  refusal  to  do  so  the  county  treasurer 
shall  "  require  the  owner  or  business  manager  to 
appear  before  him  with  the  books  and  accounts  of  the 
mercantile  establishment  for  interrogation  and  exam- 
ination .  .  .  and  compel  the  attendance  of  the 
owner  or  any  clerk,  bookkeeper  or  officer  connected 
with  said  business  to  produce  such  books  and  papers 
as  he  may  deem  expedient  .  and  further 

(45) 


46 

declares  that  if  the  owner,  proprietor  or  any  other 
person  connected  with  the  business  refuses  he  shall 
be  liable  to  a  penalty  of  one  thousand  dollars. 

If  the  constitutions  of  our  Country  and  our  State 
have  really  created  any  barrier  to  protect  citizens 
against  tyrannical  invasions  of  private  rights,  the  Leg- 
islature possessed  no  such  power.  The  protection  of 
our  constitutions  does  extend  to  a  citizen's  books  and 
papers  wherever  they  may  be.  It  is  justly  assumed 
that  every  man  may  have  secrets  pertaining  to  his 
business  or  his  family  or  his  social  relations,  to  which 
his  books,  papers,  letters  or  journals  may  bear  testi- 
mony, but  with  which  the  public,  or  any  individual  of 
the  public,  who  may  have  controversies  with  him,  can 
have  no  legitimate  concern  ;  and  even  if  they  happen 
to  be  disgraceful  to  him,  they  are  nevertheless  his 
secrets,  and  are  not  to  be  exposed.  Even  a  search 
warrant  to  seize  private  papers  is  wholly  unwarranted, 
except,  possibly,  in  cases  of  frauds  upon  the  revenue, 
where  the  papers  to  be  searched  for  have  been  the 
agencies  or  instruments  by  means  of  which  the  frauds 
have  been  accomplished. 

Cooley's  Principles  of  Constitutional  Law,  page  220. 

The  Legislature,  itself,  possessed  no  such  power,  we 
have  seen  ;  and  we  shall  see  from  a  reading  of  the 
fourth  section  that  it  nevertheless  attempted  to  dele- 
gate the  legislative  function  of  prescribing  what  was 
to  be  required  of  the  dealer  to  escape  the  threatened 


47 

illegal  invasion  of  his  private  rights  to  the  auditor 
general  : 

"  Section  4.  The  Auditor  General  shall  be  authorized 
and  required  to  prepare  and  have  printed  proper 
blanks,  to  be  distributed  by  the  mercantile  appraisers 
in  the  several  counties  to  each  vender  of  or  dealer  in 
goods,  wares  or  merchandise.  These  blanks  shall  be 
in  the  form  prescribed  by  the  Auditor  General,  and 
shall  contain  a  request  for  such  information  as  may  be 
necessary  in  arriving  at  the  actual  amount  of  business 
transacted  by  the  vender  of  or  dealer  in  goods,  wares 
and  merchandise,  during  the  calendar  year  preceding 
that  for  which  a  license  is  required.  The  blanks  thus 
prepared  shall  contain  an  affidavit ;  and  every  dealer 
subject  to  the  provisions  of  this  Act  shall  be  required 
to  make  an  affidavit,  by  oath  or  affirmation,  as  to  the 
correctness  of  the  return  made." 

Under  a  well-balanced  constitution  the  Legislature 
can  no  more  delegate  its  proper  function  than  can  the 
judiciary. 

The  fourth  section  is  a  delegation  of  legislative 
power,  because : 

1.  It  does   not  fix  the  terms  and  conditions  of  the 
blank. 

2.  It  delegates  to  a  single  individual  the  power  to 
prescribe  the  form  of  the  blank,  and  the  conditions  and 
restrictions  to  be  added  to,  and  made  part  of  it,  and  to 
decide  what  questions  may  be  necessary. 


48 

3.  The   appointee  clothed  with   the  power  is    not 
named,  but  is  designated  only  by  his  official  title.     He 
is  the  person  who  may  happen  to  be  auditor  general 
when   the   time   comes   to   prepare  the    form    of  the 
blank. 

4.  The  legislative  appointee  is  not  required  to  report 
his  work  to  the  body  appointing  him,  but  simply  to  dis- 
tribute the  forms  of  blanks  he  has  devised.     The  form 
does  not  become  part  of  the  statute,  in  fact,  is  not 
recorded  in  the  statute-book,  and  no  trace  of  it  can 
be  found  among  the  records  of  either  branch  of  the 
Legislature. 

5.  The  Act  was  approved  May  2,  1899.     The  legis- 
lative appointee  had  until  the  first  of  the  next  January 
to  prepare  the  form,  over  which  when  prepared,  the 
Legislature  had  no  control  whatever.     The  legislators 
did  not  consider,  they  had  no  knowledge  of  the  ques- 
tions they  required  each  dealer  to  answer  under  oath, 
within  ten  days,  under  penalty  of  the  seizure  of  his 
private  books  and  papers  by  the  county  treasurer,  and 
a  penalty  of  one  thousand  dollars.     The  Legislature 
says,  in  effect,  to  its  appointee,  "Prepare  just  such 
orders  as  you  please.     We  do  not  care  to  know  what 
they  are.    The  Governor  shall  have  no  opportunity  to 
veto  them.    Distribute  them,  and  we  will  compel  every 
dealer  to  obey  and  answer  under  oath  by  the  punish- 
ment of  every  man  who  hesitates." 

It  is  not  to  be  supposed  that  a  blank,  so  mischievous 


49 

as  the  one  prepared  after  the  adjournment  of  the  Leg- 
islature by  the  auditor  general,  a  copy  of  which  is 
given  below,  could  have  passed  both  houses  of  the 
Legislature.  If,  by  reason  of  any  complication  of  cir- 
cumstances, this  should  have  happened,  still  the  people 
would  have  had  a  remaining  safeguard  in  the  veto 
power  possessed  by  the  Governor.  The  Act  of  1899 
steered  past  both  legislative  discussion  and  executive 
veto,  and  vested  in  the  legislative  appointee  the  power 
to  prepare  and  distribute  the  blank,  without  even  the 
knowledge  of  the  Legislature  or  the  Governor  of  its 
provisions,  which  were  to  be  bound  under  penalties  of 
invasions  of  private  books  and  papers,  and  of  heavy 
fines  upon  thousands  of  citizens  all  over  this  Common- 
wealth. 

It  will  not  do  to  say  that  the  preparation  of  this  form 
was  an  unimportant  matter  of  detail,  or  an  act  partak- 
ing of  an  executive  or  administrative  character.  It  was 
the  sole  purpose  of  the  fourth  and  fifth  sections.  Its 
enforcement  was  the  object  of  the  penalties  of  the  fifth 
section.  Take  out  the  form  prepared  by  the  auditor 
general  and  to  be  found  in  some  pigeon-hole  in  his 
office,  and  the  fourth  and  fifth  sections  are  without 
meaning  or  effect.  They  are  completely  eviscerated. 
O'Neill  vs.  Insurance  Co.,  166  Pennsylvania  State  Re- 
ports, 72  (1895). 

The  following  form  prescribed  by  the  auditor  gen- 
eral is  inserted  for  the  purpose  of  showing  the  impolicy 


5° 

of  such  delegation  of  legislative  power  as  might  make 
it  possible  to  fasten  upon  the  people  of  this  Common- 
wealth such  an  inquisitorial,  misleading,  unjust  and 
oppressive  burden. 


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If  not  delivered  to  the  Mercantile  Appraiser 
when  called   for,  this  must  be  brought  to  the 


52 

office  of  the  Board  of  Mercantile  Appraisers, 
Room  143,  City  Hall,  to  be  signed  and  sworn 
to  within  ten  days. 

$1,000  penalty  for  refusal  to  make  sworn 
return  or  produce  books,  papers,  etc.,  before 
the  County  Treasurer. 

All  dealers  or  venders  must  make  return ;  no 
exemption  on  account  of  amount  sold. 


COMMONWEALTH   OF  PENNSYLVANIA, 


COUNTY  OF  PHILADELPHIA. 

SUMMONS  :  Whereas:  The  Act  of  Assembly  approved  and 
signed  by  the  Governor  of  the  Commonwealth  of  the 
second  day  of  May,  1899,  requires  and  compels  each 
and  every  person  selling  Merchandise,  Goods,  Wares, 
Commodities  or  Effects  of  any  kind  whatsoever, 
whether  at  Retail  or  Wholesale ;  and  including  every- 
thing sold,  no  matter  how  small  the  quantity — except 
in  such  cases  as  are  designated  by  law — to  make  a  Re- 
turn under  Oath  or  Affirmation  each  year,  of  the 
amounts  so  sold  in  the  previous  calendar  year.  And 
the  said  law  imposes  a  penalty  of  one  thousand  dollars 
for  refusing  to  make  said  return  ; 


53 

THEREFORE  TAKE  NOTICE:  This  Return  must  be 
made  out  by  you,  and  if  not  delivered  to  a  Mercantile 
Appraiser  calling  for  the  same  within  ten  days  from 
the  date  this  notice  is  mailed  to  you,  you  must  deliver 
this  in  person  and  make  Oath  or  Affirmation  thereto 
at  the  office  of  the  Board  of  Mercantile  Appraisers, 
Room  143,  City  Hall,  Philadelphia,  Pennsylvania. 

FOR  THE  COMMONWEALTH. 

r^\          • : 

f       SEAL        ) 


Board  of  Mercantile  Appraisers. 

Does  anybody  suppose  for  an  instant  that  such  a- 
paper  would  have  received  the  approval  of  a  single 
member  of  the  House  or  Senate  or  of  the  Governor, 
if  any  of  them  had  ever  seen  or  heard  of  it  ? 

Men,  wrongfully  claiming  to  be  mercantile  apprais- 
ers, without  any  real  act  of  Assembly  behind  them,  by 
sheer  arbitrary  force  and  a  pretended  writ  of  summons, 
under  an  imitation,  bogus  seal,  are  attempting  to  ter- 
rorize merchants  and  to  invade  their  offices  and  private 
books  and  papers. 


IV. 

EMOLUMENTS  OF  OFFICERS  UNDER  THE  ACT. 
SECTION  10. 


IV. 

The  tenth  section  provides  that  the  rate  of  com- 
missions allowed  county  treasurers,  the  fees  of  county 
treasurers  and  mercantile  appraisers,  and  the  provis- 
ions as  to  advertising  shall  be  the  same  as  heretofore. 

As  the  new  law  enormously  increases  the  total 
amount  of  the  mercantile  tax  the  increased  commis- 
sions of  the  county  treasurer  will  produce  a  princely 
income.  As  it  permits  no  exemptions  of  venders,  no 
matter  how  little  they  sell,  and  allows  the  appraiser 
a  liberal  fee  for  every  vender  returned,  whatever 
may  be  the  final  disposition  of  the  case  and  whether 
anything  be  collected  or  not,  it  presents  golden  oppor- 
tunities for  additional  fees  and  for  additional  adver- 
tising. 

Yet  there  is  probably  no  constitutional  remedy  for 
this  expert  fee-grabbing  device. 

And  the  benevolence  of  the  lawmaker  has  not  for- 
gotten the  ward  constable.  After  the  auditor  general, 
the  treasurer,  the  appraiser  and  the  favorite  organ  are 
through  with  the  taxpayer,  the  ward  constable  will  take 
him  up.  After  the  auditor  general,  the  treasurer  and 
appraiser  have  completed  their  work  the  ward  con- 
stable will  examine  and  correct  it.  The  ward  con- 
stable will  report  omissions  at  fifty  cents  per  head. 

(57) 


58 

"And  after  such  publication  or  advertisement  shall 
have  been  properly  made,  it  shall  be  the  duty  of  the 
constable  of  his  respective  ward,  district  or  township 
to  compare  the  list,  and  report  to  the  county  or  city 
treasurer  all  omissions  found,  and  for  such  service  the 
constable  shall  receive  a  fee  of  fifty  cents  for  each  and 
every  omission  so  reported." 

As  this  affects  every  taxpayer  in  the  Commonwealth, 
it  is  a  satisfaction  to  say  that  it  can  not  be  enforced, 
however  much  we  may  commiserate  the  ward  consta- 
ble, and  we  can  readily  understand  that  with  a  charge 
of  fifty  cents  for  each  "report"  the  clause  might  be 
made  the  source  of  vast  income  to  him.  The  title  of  the 
Act  reads  :  "An  act  to  provide  revenue  by  imposing 
a  mercantile  license  tax  on  venders  of  or  dealers  in 
goods,  wares  and  merchandise,  and  providing  for  the 
collection  of  said  tax."  This  is  all  very  well  so  far  as 
it  goes,  but  what  is  there  in  the  title  to  give  notice  that 
the  cost  of  this  perfection  of  the  work  of  the  auditor 
general,  treasurer  and  appraiser  by  the  ward  constable 
is  thrown  upon  the  taxpayers  of  Philadelphia  and  the 
other  counties  of  the  State.  In  Phcenixville  Borough 
Road,  109  Pennsylvania  State  Reports,  44,  it  was  held 
that  the  Act  of  March  18,  1868,  Pamphlet  Laws  352, 
entitled  :  "  An  Act  relating  to  boroughs  in  the  County 
of  Chester,"  which  repealed  certain  provisions  of  a 
general  act,  the  effect  of  which  was  to  relieve  the 
property  owners  in  the  borough  from  the  burden  of 


59 

paying  damages  for  roads  opened  within  the  borough 
and  to  shift  that  burden  upon  the  county,  was  uncon- 
stitutional for  the  reason  that  there  was  nothing  in  the 
title  of  the  act  to  give  notice  to  the  property  owners 
of  the  county  that  the  burden  had  been  placed  upon 
them.  In  Pierie  vs.  The  City  of  Philadelphia,  139 
Pennsylvania  State  Reports,  573  (1891),  it  was  held 
that  the  provision  of  the  Act  of  June  24,  1885,  Pam- 
phlet Laws  1 60,  directing  the  payment  of  fees  to  re- 
corders out  of  the  county  treasury  is  unconstitutional, 
the  title,  "  An  act  to  perfect  the  record  of  deeds,  mort- 
gages and  other  instruments  in  certain  cases,"  giving 
no  notice  that  the  act  contained  such  a  provision.  The 
Act  of  1899  comes  precisely  within  these  rulings. 
There  is  nothing  in  the  title  of  the  act  to  give  notice 
or  warning  to  the  taxpayers  of  the  State  that  the  ward 
constable's  fees  for  "comparing"  and  " reporting" 
were  imposed  upon  them.  The  last  clause  of  the 
tenth  section  is  plainly  unconstitutional. 


V. 


DOES   THE   ACT  CONTAIN   MORE  THAN  ONE  SUBJECT 
NOT  CLEARLY  EXPRESSED  IN  THE  TITLE  ? 

SECTION  u. 


V. 

The  eleventh  section,  in  extenso,  is  as  follows : 
''Section  n.  Each  dealer  who  comes  under  the  pro- 
visions of  this  act  shall  cause  to  be  placed  permanently, 
at  the  entrance  of  his  or  their  place  of  business,  a  sign 
describing  the  business  in  which  the  party  is  engaged, 
with  his  or  their  name  or  names  upon  the  same  such 
sign  ;  and  a  violation  of  the  provisions  of  this  section 
shall  be  punishable  with  a  fine  of  ten  dollars,  said  fine 
to  be  collected  as  fines  of  like  amount  are  now  by  the 
law  collected,  and  to  be  paid  into  the  county  treasury." 

Often,  and  sometimes  intentionally,  the  real  purpose 
of  an  act  has  been  disguised  by  a  misleading  title.  A 
reading  of  this  section  might  suggest  to  the  suspicious 
mind  the  thought  that  the  real  purpose  of  the  act  was 
to  provide  for  a  boom  in  sign  painting,  or  to  provide 
revenue  for  sign  painters  ;  and  that,  in  the  heat  of 
battle,  the  Legislature  was  misled  and  kept  in  ignor- 
ance as  to  the  true  character  of  the  legislation  by 
the  evil  device  of  calling  the  act  "An  Act  to  provide 
revenue  by  imposing  a  mercantile  license  tax  *  .  .  ." 

From  such  a  wicked  deception  the  legislator  may 
find  a  sure  refuge  beneath  the  rock  of  the  Constitution, 
which  provides  that  the  subject  of  a  bill  must  be  clearly 
expressed  in  the  title. 

(63) 


64 

As  the  historian  turns  from  the  stormy  scene  of  Sen- 
atorial carnage  of  1899  to  the  restful  perusal  of  this 
eleventh  section,  he  may  be  fancied  to  exclaim  with 
Gibbon  :  "  The  vain  titles  of  the  victories  of  Justinian 
are  crumbled  into  dust,  but  the  name  of  the  legislator 
is  inscribed  on  a  fair  and  everlasting  monument." 


PART  II. 


SOME  FEATURES  OF  THE  MERCANTILE 

TAX  LAW  OF  THE  STATE  WITHOUT 

REGARD  TO  THE  QUESTION  OF 

UNCONSTITUTIONALLY. 


VI. 

WHO  is  A  VENDER  OR  DEALER, 


VI. 

The  words  of  the  Act  are  :  "  Each  vender  and  dealer 
in  goods,  wares,  and  merchandise." 

The  words  of  the  acts  under  which  the  mercantile 
license  tax  has  heretofore  been  collected  are  of  the 
same  meaning. 

The  words  of  the  Act  of  May  4,  1841,  Pamphlet  Laws, 
page  307,  paragraph  10,  are:  "  All  persons  engaged 
in  the  selling  or  vending  of  goods,  wares,  merchandise, 
commodities,  or  effects,"  "sellers  and  venders." 

The  words  of  the  Acts  of  April  16,  1845,  Pamphlet 
Laws,  page  532,  April  22,  1846,  Pamphlet  Laws,  page 
486,  April  18,  1855,  Pamphlet  Laws,  page  244,  and 
April  8,  1873,  Pamphlet  Laws,  page  566,  are  "  dealers." 

The  words  of  the  Act  of  April  13,  1866,  Pamphlet 
Laws,  page  104,  are  "venders,"  "  dealers." 

The  meaning  of  these  words,  vender  and  dealer,  has 
been  judicially  declared. 

Norris  Brothers  vs.  The  Commonwealth,  27  Penn- 
sylvania State  Reports,  494,  was  decided  in  1856.  This 
was  an  action  brought  at  the  suit  of  the  Common- 
wealth to  recover  the  amount  of  a  mercantile  tax,  im- 
posed upon  the  makers  of  locomotives.  It  was  held 
that  they  were  not  liable.  "A  dealer,"  says  Justice 
Black,  "in  the  popular, and  therefore  in  the  statutory, 

(69) 


sense  of  the  word,  is  not  one  who  buys  to  keep,  or 
makes  to  sell,  but  one  who  buys  to  sell  again.  He 
stands  intermediately  between  the  producer  and  the 
consumer,  and  depends  for  his  profit,  not  upon  the 
labor  he  bestows  upon  his  commodities,  but  upon  the 
skill  and  foresight  with  which  he  watches  the  market. 
.  .  .  The  meaning  of  the  statute  is  perfectly  clear. 
The  Legislature  understood  the  words  it  was  using.  A 
tax  was  laid  upon  dealers,  that  is  upon  those  who  should 
buy  to  sell.  This,  of  course,  did  not  include  persons 
who  sold  the  wares  manufactured  by  themselves." 

The  Commonwealth  vs.  Campbell,  33  Pennsylvania 
State  Reports,  380,  followed  in  1859.  It  held  that  a 
tanner  who  purchases  hides,  makes  them  into  leather 
and  sells  them  is  not  a  dealer.  Chief  Justice  Lowrie 
said  :  "In  endeavoring  to  ascertain  the  classes  who  are 
taxable  by  the  mercantile  appraisers,  we  find  them 
described  in  the  Act  of  1830  by  the  terms  *  every  per- 
son who  shall  deal  in  selling  goods  and  merchandise.' 
.  .  .  The  Act  of  1841  gives  much  the  same  descrip- 
tion of  the  class,  using  the  terms  '  all  persons  engaged 
in  selling/  etc.  ...  It  also  calls  them  'dealers,' 
and  describes  them  as  persons  who  make  '  purchases 
and  sales.'  .  .  .  The  Act  of  1845  •  •  also  calls 
them  'dealers.'  Now,  it  seems  to  us  quite  clear  that 
all  these  modes  of  expression  are  merely  different 
forms  of  describing  the  class  called  merchants  and  shop 
keepers  .  .  .  Dealers  are  middlemen  between  the 
manufacturer  or  producer  and  the  consumer." 


VII. 

WHO  is  NOT  A  VENDER  OR  DEALER. 


VII. 

The  Act  of  April  22,  1846,  Pamphlet  Laws,  page 
486,  provides  that  mechanics  who  keep  a  store  or 
warehouse  at  their  own  shop  or  manufactory  for  the 
purpose  of  vending  their  own  manufactures  exclusively 
shall  not  be  required  to  take  out  any  license. 

The  Act  of  February  27,  1868,  Pamphlet  Laws, 
page  43,  declares  the  true  intent  and  meaning  of  the 
former  act  to  be  that  a  manufacturer  or  mechanic  not 
having  a  store  or  warehouse  apart  from  his  manufac- 
tory or  workshop  for  the  purpose  of  vending  goods 
shall  not  be  required  to  pay  the  annual  tax  and  license, 
and  that  an  affidavit  setting  forth  the  fact  shall  be 
sufficient  evidence  for  the  appraiser  not  to  classify  him. 

And  the  Act  of  April  9,  1870,  Pamphlet  Laws,  page 
59,  provides  that  manufacturers  and  mechanics  who 
shall  sell  goods,  wares  and  merchandise  other  than 
their  own  manufacture  not  exceeding  five  hundred 
dollars  per  annum  shall  not  be  required  to  pay  any 
annual  tax  or  license  fee  ;  but  if  such  sales  shall 
exceed  five  hundred  dollars  per  annum  they  shall  be 
classified  in  the  same  manner  and  required  to  pay  the 
same  annual  tax  as  is  now  required  to  be  paid  by 
dealers  in  foreign  merchandise. 

These  acts  are  not  repealed  by  the  Act  of  1899. 

(73) 


74 

The  meaning  of  these  words,  manufacturer  and 
mechanic,  has  also  been  the  subject  of  judicial  con- 
struction. 

In  Norris  Brothers  vs.  The  Commonwealth  (above), 
27  Pennsylvania  State  Reports,  494,  Mr.  Justice  Black 
said  :  "  A  man  who  makes  locomotives  is  a  mechanic. 
If  he  is  not  I  know  not  why  we  should  give  that  appel- 
lation to  one  who  makes  wagons  or  wheelbarrows." 
The  tire  of  the  engine  wheels  was  bought  and  not 
made  at  the  Norris  Brothers'  shop,  and  it  was  insisted 
on  this  account  that  the  machines  were  not  their  own 
manufacture.  "But,"  said  Justice  Black,  "what  is 
manufacturing?  It  is  making.  To  make  in  the  me- 
chanical sense  does  not  signify  to  create  out  of  nothing  ; 
for  that  surpasses  all  human  power.  It  does  not  often 
mean  the  production  of  a  new  article  out  of  materials 
entirely  raw.  It  generally  consists  in  giving  new 
shapes,  new  qualities  or  new  combinations  to  matter 
which  has  already  gone  through  some  other  artificial 
process.  A  cunning  worker  in  metals  is  the  maker 
of  the  wares  he  fashions,  though  he  did  not  dig  the 
ore  from  the  earth  or  carry  it  through  every  subsequent 
stage  of  refinement.  A  shoemaker  is  none  the  less  a 
manufacturer  of  shoes  because  he  does  not  tan  the 
leather.  A  bureau  is  made  by  the  cabinetmaker  though 
it  consists  in  part  of  locks,  knobs  and  screws  bought 
ready  made  from  a  dealer  in  hardware." 

Under  the  authority  of  this  leading  case  it  has  since 
been  held 


75 

That  a  tanner  who  purchases  hides,  makes  them 
into  leather  and  sells  them  is  not  liable  to  pay  a  mer- 
cantile license  tax. 

Commonwealth  vs.  Campbell  (above),  33  Pennsyl- 
vania State  Reports,  380  (1859). 

Nor  a  miller  who  purchases  grain  and  sells  flour  and 
feed  made  therefrom. 

Lamen  vs.  Paxton,  2  Luzerne.     Legal  Register  259 

(1874). 

Nor  a  farmer  who  sells  produce  in  a  market. 
Barton  vs.  Morris,   i  Weekly  Notes  of  Cases,  543, 


Nor  a  butcher  who  sells  meat,  slaughtered  by  himself, 
in  a  market-house  stall  or  from  a  wagon. 

Givier's  Appeal,  12  Weekly  Notes  of  Cases,  236, 
(1882). 

Nor  one  engaged  in  the  business  of  butchering  and 
selling  lambs,  calves  and  sheep,  and  dressing  and 
selling  poultry. 

Commonwealth  vs.  Brinton,  3  District  Reports,  783, 

(1894). 

Nor  a  plumber. 

In  regard  to  a  plumber,  the  Supreme  Court  said  in 
1896  : 

"He  is  neither-  a  manufacturer  nor  a  dealer  in  the 
strict  sense  of  the  latter  term.  He  does  not  buy  to 
sell  the  articles  he  uses.  He  does  not  sell  them  in  the 
literal  sense,  and  he  only  buys  them  when  he  has  a 


76 

job  of  work  to  do  for  which  he  requires  them.  As  be- 
tween the  dealer  and  himself  he  is  the  consumer.  He 
needs  the  articles  in  his  business.  He  puts  them  into 
buildings,  putting  his  own  work  upon  them,  but  when 
they  are  placed  there  they  are  not  in  the  same  shape 
as  when  he  received  them,  but  as  a  compact  whole 
composed  of  all  the  materials  required  for  the  purpose, 
no  matter  from  what  source  he  obtained  them.  For 
instance,  a  complete  steam-heating  apparatus  requires 
boilers,  radiators,  pipes,  valves,  one  or  more  furnaces, 
and  other  articles  to  make  a  complete  work.  Some  of 
these  things  might  be  obtained  from  one  dealer,  and 
others  from  other  dealers,  but  the  ultimate  thing  which 
the  plumber  supplies  to  his  customer  is  not  the  thing 
that  he  bought.  His  own  work,  too,  must  be  added,  a 
necessary  and  expensive  part  of  the  completed  whole, 
as  all  persons  know  who  have  such  bills  to  pay.  How 
then  can  it  be  said  that  such  a  person  is  a  dealer,  when 
the  thing  which  he  sells  is  not  the  thing  which  he  buys  ? 
Even  the  manufacturer  who  does  sell  the  very  article 
he  makes  is  not  liable  to  the  tax  unless  he  keeps  a 
store  at  which  his  products  are  sold  ;  how,  then,  can  a 
mere  mechanic,  who  buys  ingredients  from  others  and 
works  upon  them,  combining  them  into  one  com- 
pleted whole,  be  regarded  as  a  dealer?  We  think 
he  cannot." 

The  Commonwealth  of  Pennsylvania  vs.  John 
Gormly,  173  Pennsylvania  State  Reports,  586. 

Nor  a  merchant  tailor. 


77 

The  Commonwealth  of  Pennsylvania  vs.  John  McAl- 
lister, Common  Pleas  Court  No.  2,  of  Philadelphia 
County,  of  June  Term,  1895,  No.  30. 

Nor  a  Paperhanger. 

The  Commonwealth  of  Pennsylvania  vs.  Richard 
Ogden,  Court  of  Common  Pleas  No.  4,  of  Philadel- 
phia County,  of  June  Term,  1896,  No.  98. 

Nor  an  Undertaker. 

The  Commonwealth  of  Pennsylvania  vs.  William  A. 
Robson,  Court  of  Common  Pleas  No.  4,  of  Philadel- 
phia County,  of  March  Term,  1896,  No.  1246. 

Nor  a  Confectioner. 

The  Commonwealth  of  Pennsylvania  vs.  Robert 
Young*  Common  Pleas  Court  No.  i,  of  Philadelphia 
County,  of  March  Term,  1898,  No.  1092. 

And  in  regard  to  farmers  the  Legislature  somewhat 
unnecessarily  provided  in  the  fifth  section  of  the  Act 
of  April  1 8,  1878,  Pamphlet  Laws,  page  26,  §5,  that 
"  farmers  selling  their  own  produce  or  occupying  a 
stall  or  stalls  or  sidewalk  or  part  thereof  in  any  of  the 
markets  of  a  city  of  the  first  class  shall  not  be  subject 
to  classification  or  taxation  for  mercantile  purposes." 

On  principle  and  authority,  therefore,  it  may  safely 
be  affirmed  that,  while  all  of  the  following  classes  and 
many  others  have  been  wrongfully  and  contrary  to 
the  law  of  this  Commonwealth  saddled  with  the  burden 
of  the  mercantile  license  tax  in  the  past,  they  are, 
none  of  them,  venders  or  dealers  within  the  meaning 


78 

of  the  Act  of  1899,  nor  subject  in  any  way  to  any  of 
its  provisions. 

Apothecaries, 

Bakers, 

Bookbinders, 

Butchers, 

Canners, 

Caterers, 

Chemists, 

Clothing  Makers, 

Confectioners, 

Coffee  Roasters, 

Dressmakers, 

Farmers, 

Florists, 

Furriers, 

Hatters, 

Ice  Cream  Makers, 

Jewelers, 

Locomotive  Makers, 

Merchant  Tailors, 

Millers, 

Milliners, 

Opticians, 

Paperhangers, 

Photographers, 

Plumbers, 

Publishers, 


79 


Shirtmakers, 

Shoemakers, 

Stationers, 

Tanners, 

Undertakers, 

Upholsterers, 

Watchmakers. 


VIII. 


THE    LAW    AS    TO    MANUFACTURERS    OR    MECHANICS. 


VIII. 

In  the  last  chapter  it  was  shown  that  manufacturers 
and  mechanics,  including 
Apothecaries, 
Bakers, 
Bookbinders, 
Butchers, 
Canners, 
Caterers, 
Chemists, 
Clothing  Makers, 
Confectioners, 
Coffee  Roasters, 
Dressmakers, 
Farmers, 
Florists, 
Furriers, 
Hatters, 

Ice  Cream  Makers, 
Jewelers, 

Locomotive  Makers, 
Merchant  Tailors, 
Millers, 
Milliners, 
Opticians, 

(83) 


0 
84 

Paperhangers, 

Photographers, 

Plumbers, 

Publishers, 

Shirtmakers, 

Shoemakers, 

Stationers, 

Tanners, 

Undertakers, 

Upholsterers, 

Watchmakers, 

and  all  persons  similarly  employed  are  not  subject  in 
any  way  to  any  of  the  provisions  of  the  new  mercan- 
tile tax  law  of  1899. 

What  is  their  legal  liability  to  payment  of  a  mercan- 
tile license  tax  ? 

The  answer  is  to  be  found  in  the  Act  of  February 
27,  1868,  Pamphlet  Laws,  page  43,  §  i  : 

"  A  manufacturer  or  mechanic  not  having  a  store  or 
warehouse  apart  from  his  manufactory  or  work-shop, 
for  the  purpose  of  vending  goods,  shall  not  be  required 
to  pay  the  annual  tax  and  license." 

And  in  the  Act  of  April  9,  1870,  Pamphlet  Laws, 
page  59,  §  i  : 

"  Manufacturers  and  mechanics  who  shall  sell  goods, 
wares  or  merchandise  other  than  their  own  manufac- 
ture, not  exceeding  five  hundred  dollars  per  annum, 
shall  not  be  required  to  pay  any  annual  tax  or  license 


85 

fee ;  but,  if  such  sales  shall  exceed  five  hundred  dol- 
lars per  annum,  they  shall  be  classified  in  the  same 
manner  and  required  to  pay  the  same  annual  tax  as  is 
now  required  to  be  paid  by  dealers  in  foreign  mer- 
chandise." 

All  these  classes,  therefore,  pay  no  tax  whatever 
upon  their  sales  of  their  productions,  except  in  the 
one  rare  instance  where  they  keep  separate  stores  at 
different  places  from  their  ordinary  places  of  business. 

And  they  pay  no  tax  whatever  even  upon  their  sales 
of  articles  other  than  their  own  productions,  except 
in  the  one  very  rare  instance  where  such  sales  of 
articles  other  than  their  own  productions  exceed  five 
hundred  dollars  per  annum. 

And,  even  in  these  two  rare  instances,  they  do  not 
become  in  any  way  subject  to  any  of  the  provisions 
of  the  new  law  of  1899. 

Then,  as  the  Act  of  April  9,  1870,  declares,  "they 
shall  be  classified  in  the  same  manner  and  required 
to  pay  the  same  annual  tax  as  is  now  required  to  be 
paid  by  dealers  in  foreign  merchandise." 

The  inquiry,  therefore,  is  :  How  were  dealers  in  for- 
eign merchandise  classified  and  what  annual  tax  were 
they  required  to  pay  on  April  9,  1870  ? 

The  answer  to  this  inquiry  is  the  Act  of  May  4, 
1841,  Pamphlet  Laws,  307,  §10.  "All  such  sellers 
or  venders  shall  be  classed  and  required  to  pay 
annually  for  the  use  of  the  Commonwealth  for  their 
respective  licenses  as  follows,  viz  : 


86 

"  Those  who  are  esteemed  and  taken  to  make  and 
effect  annual  sales  to  the  amount  of  three  hundred 
thousand  dollars  and  upwards,  shall  constitute  the 
first  class,  and  pay  two  hundred  dollars  ; 

"Those  to  the  amount  of  two  hundred  thousand 
and  less  than  three  hundred  thousand,  the  second 
class,  and  pay  one  hundred  and  fifty  dollars  ; 

"Those  to  the  amount  of  one  hundred  thousand, 
and  less  than  two  hundred  thousand,  the  third  class, 
and  pay  one  hundred  dollars  ; 

"Those  to  the  amount  of  eighty-five  thousand,  and 
less  than  one  hundred  thousand  dollars,  the  fourth 
class,  and  pay  eighty  dollars  ; 

"  Those  to  the  amount  of  seventy-five  thousand, 
and  less  than  eighty-five  thousand  dollars,  the  fifth 
class,  and  pay  sixty  dollars  ; 

"Those  to  the  amount  of  sixty  thousand,  and  less 
than  seventy-five  thousand  dollars,  the  sixth  class,  and 
pay  fifty  dollars  ; 

"Those  to  the  amount  of  fifty  thousand,  and  less 
than  sixty  thousand  dollars,  the  seventh  class,  and 
pay  forty  dollars  ; 

"Those  to  the  amount  of  forty  thousand,  and  less 
than  fifty  thousand  dollars,  the  eighth  class,  and  pay 
thirty  dollars  ; 

"  Those  to  the  amount  of  thirty  thousand,  and  less 
than  forty  thousand  dollars,  the  ninth  class,  and  pay 
twenty-five  dollars. 


87 

"  Those  to  the  amount  of  twenty  thousand,  and  less 
than  thirty  thousand  dollars,  the  tenth  class,  and  pay 
twenty  dollars  ; 

"  Those  to  the  amount  of  fifteen  thousand,  and  less 
than  twenty  thousand  dollars,  the  eleventh  class,  and 
pay  fifteen  dollars  ; 

''Those  to  the  amount  of  ten  thousand,  and  less 
than  fifteen  thousand  dollars,  the  twelfth  class,  and  pay 
twelve  dollars  and  fifty  cents  ; 

"  Those  to  the  amount  of  five  thousand,  and  less 
than  ten  thousand  dollars,  the  thirteenth  class,  and  pay 
ten  dollars ; 

"Those  to  an  amount  less  than  five  thousand,  the 
fourteenth  class,  and  pay  seven  dollars  ;  .  .  . 

"Provided,  That  no  person  whose  annual  sales  do 
not  exceed  one  thousand  dollars  ;  and  no  feme  sole 
trader  or  single  woman  whose  annual  sales  do  not 
exceed  two  thousand  five  hundred  dollars  .  .  . 
shall  be  required  to  take  out  a  license." 

And  the  Act  of  April  13,  1866,  Pamphlet  Laws, 
page  104,  §i  : 

"In  addition  to  the  present  classification  of  licenses 
of  venders  of  merchandise,  all  dealers  who  are 
esteemed  and  taken  to  effect  annual  sales  to  the 
amount  of  five  hundred  thousand  dollars  shall  consti- 
tute Class  A,  and  pay  three  hundred  and  fifty  dollars  ; 
those  to  the  amount  of  one  million  of  dollars,  Class 
B,  and  pay  four  hundred  and  fifty  dollars  ;  those  to 


88 


the  amount  of  two  millions  of  dollars,  Class  C,  and 
pay  six  hundred  dollars  ;  those  to  the  amount  of  three 
millions  of  dollars,  Class  D,  and  pay  eight  hundred 
dollars  ;  those  to  the  amount  of  four  millions  of  dol- 
lars, Class  E,  and  pay  nine  hundred  dollars  ;  those  to 
the  amount  of  five  millions  of  dollars,  Class  F,  and 
pay  one  thousand  dollars." 

Adding  the  city  fee  for  issuing  license,  fifty  cents  in 
each  case,  the  tariff  of  licenses,  therefore,  for  the  few 
members  of  these  classes  who  keep  separate  stores 
and  make  sales  of  articles  other  than  their  own  pro- 
ductions exceeding  five  hundred  dollars  per  annum,  is  : 


CLASS. 

ANNUAL  SALES. 

LICENSE. 

14.  . 

$    I  QOO  to  $ 

5,OOO    .  .     *    7  en 

13  ... 

5,000  to 

IO,OOO  

IO  5O 

12  

10,000  to 

I1?  ,OOO 

13  OO 

II  .... 

....    15,000  to 

2O,OOO 

15  5O 

10.  ... 

20  ooo  to 

30  ooo 

*  J  J^ 

20  50 

9  ...  . 

30,000  to 

4O.OOO 

25  5O 

8  

40,000  to 

50,000 

3O  5O 

7 

...     50  ooo  to 

60  ooo 

4O  5O 

6.... 

60,000  to 

75,000.  . 

5O  5O 

B 

75.000  to 

85,000. 

60  5O 

85,000  to 

100,000 

80  50 

? 

100  ooo  to 

200,000 

100  50 

2.  ... 

200,000  to 

300,000.  . 

I5O  5O 

I 

300,000  to 

500,000.  . 

20O  50 

A 

500,000  to 

1,000,000  

35O  5O 

B 

1,000000  to 

2,000,000  .  .  . 

45O  50 

C  .  . 

2,000,000  to 

3,000,000.  . 

....   6OO  50 

D 

3  ooo  ooo  to 

4  ooo  ooo 

8OO  50 

E 

4,000,000  to 

5  .OOO.OOO.  . 

QOO  5O 

F 

c  onn  onn  anH 

upward 

I.OOO  5O 

89 

exempting,  however,  all  of  them  whose  annual  sales 
do  not  exceed  one  thousand  dollars,  and  all  married 
or  single  women  of  them  whose  annual  sales  do  not 
exceed  two  thousand  five  hundred  dollars. 

And  all  these  classes,  being  in  no  wise  subject  to 
any  of  the  provisions  of  the  new  law,  can,  under  no 
circumstances  be  required  to  answer  any  of  the  ques- 
tions prescribed  by  the  Auditor  General  and  which 
are  discussed  in  Chapter  III  above.  And,  if  there 
were,  at  this  time,  any  legally  constituted  mercantile 
appraisers,  the  only  way  the  officers  could  proceed 
against  any  of  them  would  be  under  the  Act  of  April 
n,  1862,  Pamphlet  Laws,  page  492,  §i,  which  pro- 
vides as  follows  : 

"  It  shall  be  the  duty  of  the  mercantile  appraisers 
in  the  several  cities  and  counties  of  this  State,  per- 
sonally to  visit  the  store,  distillery,  brewery,  or  other 
place  of  business  of  every  person  whom  they  are 
required  by  law  to  ascertain  and  assess,  and  at  the 
time  of  such  visit,  to  give  to  each  such  person  living 
on  the  premises,  a  written  or  printed  notice,  specifying 
the  classification  and  amount  of  license  money  to  be 
paid  by  such  person  to  the  State  and  also  the  time 
and  place  when  and  where  he,  the  said  appraiser,  will 
hold  an  appeal,  as  required  by  law." 

And  the  written  or  printed  notice  required  to  be 
given  by  the  Act  is  simply 

"  You  are  hereby  notified  that  you  have  been  clas- 


9o 

sified  in  the  class  and  the  amount  of  your 

license  is  $ The  time  and  place  of  holding 

an  appeal  in  your  case  is  

the day  of 

A.  D.,  190     ,  at (place)." 

Anything  more  than  this  is  unauthorized  and  con- 
trary to  law. 


PART    III. 

REMEDIES. 


IX. 

THE  SEVEN  REMEDIES  OF  THE  CITIZEN. 


IX. 

First. — Bill  in  Equity. 

A  court  of  equity  will  not  interfere  to  restrain  the 
collection  of  taxes,  but  will  leave  the  party  aggrieved 
to  his  remedy  at  law,  where  the  tax  is  lawfully  assessed 
or  where  the  matters  complained  of  are  mere  irreg- 
ularities in  the  valuation  or  assessment. 

But  where  there  is  either  a  want  of  power  to  tax, 
or  a  disregard  of  the  Constitution  in  the  mode  of 
assessment,  there  is  no  doubt  of  the  power  and  the 
duty  of  a  court  of  equity  to  interfere. 

Thus  Bangor's  Appeal,  109  Pennsylvania  State 
Reports,  79  (1885),  was  a  bill  in  equity  wherein  George 
S.  Bangor  was  complainant  and  the  City  of  Williams- 
port  and  Martin  O'Hara,  tax  collector,  were  defend- 
ants. The  bill  set  forth  that  the  complainant  was  a 
citizen  and  taxpayer  of  the  City  of  Williamsport,  that 
the  city  had  assessed  his  occupation  at  two  thousand 
dollars  and  that,  in  doing  so,  the  said  city  had  clearly 
violated  the  provisions  of  the  Constitution  of  Penn- 
sylvania, wherein  it  provides  that  all  taxes  shall  be 
uniform  upon  the  same  class  of  subjects.  The  bill 
prayed  that  the  said  city  of  Williamsport,  her  officers, 
agents  and  employees,  and  the  said  O'Hara,  might  be 
restrained  by  injunction  from  the  collection  of  said 

(95) 


96 

tax ;  and  the  Supreme  Court,  upon  appeal,  ordered 
that  the  record  be  remitted  to  the  court  below  with 
instructions  to  issue  an  injunction  as  prayed  for  in 
the  bill. 

And  so,  in  a  similar  bill,  can  be  raised  all  the  ques- 
tions as  to  the  constitutionality  of  the  Act  of  1899, 
except  the  question  of  the  right  of  the  men  claiming 
to  be  mercantile  appraisers  to  exercise  the  duties  of 
the  office. 

Second. —  Quo  Warranto. 

While  an  injunction  will  not  be  granted  to  restrain 
an  individual  from  exercising  the  office  of  mercantile 
appraiser,  the  question  of  his  right  to  exercise  the 
duties  of  the  office  may  be  tried  by  proceedings  in  a 
writ  of  quo  warranto,  which  affords  an  ample  legal 
remedy.  "  There  is,"  says  the  learned  Court,  in  the 
case  of  Hagner  vs.  Heyberger,  7  Watts  &  Sergeant, 
104  (1844),  "an  adequate  and  exclusive  remedy  at 
law  in  such  a  case  by  a  writ  of  quo  warranto." 

Third. — Refusal  To  Pay. 

Upon  petition  of  citizens,  the  fiscal  agents  of  the 
State  might  decline  to  approve  or  pay  the  demands  of 
those  claiming  to  be  mercantile  appraisers  for  services 
claimed  to  have  been  rendered  as  such. 


97 

Fourth. — Affidavit  under    The  Act  of  February  27, 
1868,  Pamphlet  Laws,  page  43,  §  /. 

The  Act  provides  : 

"  The  true  intent  and  meaning  of  the  eleventh  sec- 
tion of  an  act  entitled,  *  An  act  to  provide  for  the  re- 
duction of  the  public  debt,'  approved  April  22,  1846, 
is  hereby  declared  to  be,  that  a  manufacturer  or  me- 
chanic, not  having  a  store  or  warehouse  apart  from  his 
manufactory  or  workshop,  for  the  purpose  of  vending 
goods,  such  manufacturer  or  mechanic  shall  not  be  clas- 
sified or.required  to  pay  the  annual  tax  and  license,  as  is 
now  required  in  relation  to  foreign  dealers,  and  that  an 
affidavit  before  an  alderman  or  justice  of  the  peace,  or 
any  person  authorized  by  law  to  administer  an  oath  or 
affirmation,  setting  forth  the  fact  that  such  manufac- 
turer or  mechanic  has  not  a  store  or  warehouse  apart 
from  his  manufactory  .or  workshop,  shall  be  sufficient 
evidence  for  the  appraiser  of  mercantile  tax  not  to  so 
classify  said  manufacturer  or  mechanic  ;  Provided,  That 
any  person  swearing  falsely  in  relation  to  any  matter 
provided  for  in  this  act  shall  be  deemed  guilty  of 
perjury,  as  if  said  oath  had  been  taken  in  any  legal 
proceeding." 

The  affidavit  under  the  Act  should  be  in  this  form  : 
COUNTY,  ss. 

being  duly  sworn  (or  affirmed)  according  to  law,  doth 
depose  and  say  that  he  is  a  manufacturer  or  mechanic 


98 

and  that  he  has  not  a  store  or  warehouse  apart  from 
his  manufactory  or  workshop. 

Sworn   (or  affirmed)  and  subscribed  to  before  me 

this  day  of  A.D.  190 

Notary  Public. 

A  mercantile  appraiser  should  not  classify  as  a 
vender  or  dealer  any  manufacturer  or  mechanic  or 
any  member  of  any  of  the  classes  given  in  Chap- 
ters VII  and  VIII  or  any  person  similarly  employed 
who  swears  or  affirms  to  such  an  affidavit  and  pre- 
sents it  to  the  appraiser,  except  in  the  very  rare 
instance  where  the  affiant  sells  goods  other  than  his 
own  productions  exceeding  the  sum  of  one  thousand 
dollars  per  annum. 

Fifth.— Appeal. 

The  Act  of  April  16,  1845,  Sections  5,  6,  7,  8  and 
9,  Pamphlet  Laws,  pages  533,  534,  inaugurated  the 
system  in  force  up  to  this  year  (1900),  for  the 
ascertainment  and  assessment  of  all  dealers.  Its 
provisions  were  local,  applying  only  to  the  counties 
of  Philadelphia  and  Allegheny ;  but  by  the  Act  of 
April  22,  1846,  Pamphlet  Laws,  page  486,  they  were 
extended  throughout  the  State.  Under  this  law  the 
assessments  are  required  to  be  made  before  the  first 
day  of  May,  by  an  officer  styled  the  "  appraiser  of 
mercantile  taxes,"  whose  duties  are  therein  clearly 


99 

defined.  He  is  to  prepare  a  list  of  all  dealers  in  the 
county,  arranging  them  in  their  several  classes,  and 
to  give  notice  by  advertisement  of  the  assessment 
and  classification  made  by  him.  If  any  person  or 
firm  complains  to  the  appraiser  that  the  assessment 
against  him  or  them  has  not  been  properly  made, 
the  appraiser  may  hear  the  person  on  oath,  and  may 
increase  or  reduce  the  assessment.  If  the  person 
assessed  is  dissatisfied  with  the  decision  of  the 
appraiser,  he  may  appeal  to  the  judges  of  the  court 
of  common  pleas,  whose  decision  upon  the  question  is 
made  final.  The  decision  of  the  court  upon  an 
appeal  from  the  decision  of  the  appraiser,  was  made 
final,  however,  by  the  Act  of  1845,  onty  so  far  as 
regards  the  amount,  and  the  amount  was  regulated 
by  the  class  in  which  the  dealer  was  placed.  This 
amount  was,  by  the  Act  of  March  4,  1825,  Pamphlet 
Laws,  page  30,  to  be  collected  by  suit,  before  an 
alderman  or  justice  of  the  peace,  from  whose  decision 
there  was  allowed  an  appeal  to  the  court  of  com- 
mon pleas,  which  appeal  took  grade  with  other  suits 
brought  in  court.  Thus  far  the  Legislature  had 
left  open  the  question  of  liability  to  the  tax  in  all 
cases  where  suit  was  brought  to  recover  it.  One  who 
denied  his  being  a  dealer  within  the  meaning  of  the 
law  had  no  occasion  to  appeal  to  the  appraiser  or  to 
the  court ;  he  could  make  his  defence  before  the  magis- 
trate, or  on  appeal  from  the  magistrate's  judgment. 


100 

This  was  the  cause  of  great  delay  and  uncertainty  in 
the  collection  of  the  taxes.  In  some  instances,  years 
might  be  consumed  in  litigation  in  the  common  pleas 
and  supreme  court  in  determining  the  simple  question 
of  liability  under  the  circumstances  of  the  case. 

In  furtherance  of  justice,  therefore,  and  to  provide 
a  more  speedy  mode  of  settling  questions  pertaining 
to  this  branch  of  the  public  revenue,  the  Legislature 
passed  the  Act  of  April  n,  1862,  Pamphlet  Laws, 
page  492,  by  which  it  is  provided  that  the  appraiser 
shall  give  notice  to  each  person  assessed  of  the 
class  in  which  he  is  placed  and  the  amount  of  his 
license  and  the  time  when  the  appraiser  will  hear 
an  appeal.  If  the  person  assessed  shall  fail  to  attend 
the  appeal,  or  to  appeal  from  the  decision  of  the 
appraiser  to  the  court  within  ten  days  thereafter,  the 
act  declares,  he  shall  not  be  permitted  to  set  up  as  a 
defence  to  the  recovery  of  the  amount  of  license  which 
he  is  required  to  pay,  when  suit  shall  be  brought 
for  the  recovery  of  the  same,  either  that  he  is  not  a 
dealer  or  any  other  ground  of  defence  which  might 
have  been  heard  either  by  the  mercantile  appraiser  or 
the  court  of  common  pleas  on  appeal. 

The  whole  matter  of  laying  and  collecting  public 
taxes  and  revenue  is  regulated  and  prescribed  for 
by  statute,  and  it  has  been  held  many  times  under 
the  Act  of  1862  that  those  who  fail  to  appeal  to  the 
court  from  the  decision  of  the  appraisers  within  ten 


101 

days  are  perpetually  without  redress.  "  Although  not 
subject  to  the  license  tax,"  said  President  Judge  Elwell 
of  Columbia  County,  in  Lamon  vs.  Paxton,  2  Kulp, 
2 59  (l%74)>  "the  defendants  here  did  not  avail  them- 
selves of  the  mode  of  redress  which  the  law  gave 
them.  By  their  acquiescence  they  have  waived  any 
defence  which  they  miglv  have  made,  and,  therefore, 
have  now  no  defence." 

The  Act  of  1899  has  not  attempted  to  change  the 
law  in  this  respect.  The  sixth  section  provides  :  "  He 
(the  appraiser)  shall  also  leave  a  written  or  printed 
notice,  to  be  prepared  and  furnished  by  the  Auditor 
General,  specifying  the  classification  and  amount  of 
license  money  to  be  paid  by  such  person  to  this  State, 
and  also  the  time  and  place,  when  and  where  an  appeal 
will  be  held  as  required  by  law.  The  appeal  shall  be 
held  by  the  county  treasurer,  acting  in  conjunction 
with  the  mercantile  appraiser,  at  such  date  as  shall 
conform  with  law  in  all  counties,  except  where  there 
is  a  board  of  mercantile  appraisers,  in  which  case  the 
board  shall  hear  all  appeals.  Any  vender  or  dealer, 
subject  to  the  provisions  of  this  act,  who  is  dissatisfied 
with  the  rating  so  made  by  the  mercantile  appraiser, 
shall  have  the  right  of  appeal  to  the  mercantile  ap- 
praiser and  county  treasurer,  who  are  required  to 
hear  him  on  the  day  so  fixed  for  the  appeal ;  if  the 
vender  or  dealer  is  still  dissatisfied  with  the  finding  of 
the  county  treasurer  and  mercantile  appraiser,  or 


102 

board  of  appraisers,  in  reference  to  the  proper  classi- 
fication of  said  vender  or  dealer,  he  shall  have  the 
right  of  appeal  to  the  court  of  common  pleas  of  the 
proper  county,  which  appeal  the  said  court  is  required 
to  hear  and  determine  within  twenty  days  after  such 
appeal  shall  be  taken,  or  at  the  next  sitting  thereof. 
If  any  person  fails  to  attend  the  appeal  before  the 
county  treasurer  and  mercantile  appraiser,  board  of 
appraisers,  or  the  court,  he  shall  not  thereafter  be  per- 
mitted, in  a  suit  for  the  recovery  of  said  mercantile 
license  tax,  to  set  up  as  a  defence,  either  that  he  is 
not  a  vender  or  dealer  in  goods,  wares  or  merchandise, 
or  any  other  ground  of  defence,  which  might  have 
been  heard  and  determined  either  by  said  county 
treasurer  and  mercantile  appraiser,  board  of  apprais- 
ers, or  the  court  of  common  pleas,  on  appeal,  as 
aforesaid." 

The  safe  method,  therefore,  to  present  a  defence, 
or  to  raise  any  question,  always  is  to  appear  before 
the  mercantile  appraiser  and  county  treasurer,  or  be- 
fore the  board  of  mercantile  appraisers,  as  the  case 
may  be,  at  the  time  set  for  appeal ;  and,  if  dissatisfied 
with  the  finding  at  such  appeal,  to  appeal  from  the 
finding  to  the  court  of  common  pleas. 

This  method  is  also  a  reasonable  and  convenient 
one. 

The  following  form  of  an  appeal  to  the  Court  of 
Common  Pleas  has  been  in  use  in  the  county  of 
Philadelphia. 


No.  TERM,  190 

C.  P.  No. 


APPEAL  FROM  THE  APPRAISERS  OF 
MERCANTILE  LICENSES. 


Attorney  for  Appellant,  Defendant. 


IO4 


IN  THE  COURT  OF  COMMON  PLEAS  NO. 
FOR  THE  COUNTY  OF   PHILADELPHIA, 
TERM,  NO. 

APPEAL 

of 

from   the   decision,  of  the    Appraisers  of  Mercantile 

Licenses,  rating  .him 

having  been  rated  for 

the  license  year  commencing  May  i,  190  , 

by  the  Appraisers  of  Mercantile  Licenses,  and  having 
attended  the  appeal  to  the  Appraisers,  and  being  dis- 
satisfied with  the  decision  of  the  Appraisers  upon  such 
appeal  rating  him ,  hereby  ap- 
peals from  the  said  decision  of  the  Appraisers  to  the 
Court  of  Common  Pleas  of  Philadelphia  County. 

PHILADELPHIA  COUNTY,  ss. : 

being  duly 

says  that  he  is  the  Appellant  in  the  above  appeal,  and 
that  the  said  appeal  is  not  taken  for  the  purpose  of 
delay,  but  because  he  verily  believes  injustice  has 
been  done  the  Appellant. 

and  subscribed  before  me    "j 

this day  of > 

A.D.  190  .  J 

Notary  Public. 


IDS 

It  can  be  readily  adapted  for  use  in  any  other  county. 
The  practice  has  been  for  the  Commonwealth  to  pre- 
pare, file,  and  serve  its  statement  of  demand  under  the 
Act  of  May  25,  1887,  Pamphlet  Laws,  page  271,  set- 
ting forth  the  acts  of  Assembly  upon  which  its  demand 
is  based.  The  appellant,  defendant,  replies  by  affi- 
davit of  defence.  The  matter  can  then  be  heard  by 
the  Judges  upon  a  rule  for  judgment  for  want  of  a 
sufficient  affidavit  of  defence.  Where  it  is  necessary, 
the  Commonwealth,  if  it  desires,  may  take  a  rule  to 
plead.  The  defendant  then  pleads  "  non  assiimpsit" 
and  the  case  is  at  issue  and  ready  for  jury  trial.  At 
the  trial  the  Commonwealth  must  first  prove  its  case. 
If  it  does,  the  defendant  then  presents  his  defence. 
The  Court  must  hear  the  appeal  within  twenty  days, 
or  at  its  next  sitting.  There  is  the  usual  appeal  to  the 
Superior  Court,  or  to  the  Supreme  Court,  as  in  other 
cases.  No  penalty  is  incurred  by  the  appellant  for 
delay  until  after  the  appeal  is  finally  disposed  of. 

Commonwealth  of  Pennsylvania  vs.  Potter,  159 
Pennsylvania  State  Reports,  583  (1894). 


Sixth. — Defence  in  Subsequent  Suit  by  the 
Commonwealth . 

In  the  preceding  section  upon  the  subject  of  appeal, 
we  saw  that  the  provision  of  the  sixth  section  that  "  if 
any  person  fails  to  attend  the  appeal  before  the  county 


io6 

treasurer  and  mercantile  appraiser,  board  of  apprais- 
ers or  the  court,  he  shall  not  thereafter  be  permitted 
in  a  suit  for  the  recovery  of  said  mercantile  license 
tax  to  set  up  as  a  defence,  either  that  he  is  not  a 
vender  of  or  dealer  in  goods,  wares  or  merchandise, 
or  any  other  ground  of  defence  which  might  have  been 
heard  and  determined  either  by  said  county  treasurer 
and  mercantile  appraiser,  board  of  appraisers  or  in 
the  court  of  common  pleas  on  appeal  as  aforesaid," 
as  contained  in  the  older  act  of  Assembly,  had  been 
strictly  adhered  to  by  the  courts  in  many  instances. 

And  it  was  shown  that  when  applied  to  questions  of 
the  amount  of  the  assessment,  of  classification,  of 
irregularities,  of  technicalities,  etc.,  it  is  consistent 
with  public  interests. 

Nevertheless  there  are  cases  where  a  person  asses- 
sed has  a  right  to  treat  the  assessment,  with  the  sub- 
sequent proceedings  under  it,  as  a  nullity  and  to  disre- 
gard it ;  and,  afterwards,  to  present  his  defence  by  an 
affidavit  of  defence,  should  an  action  be  brought  by 
the  Commonwealth  for  the  amount  of  the  assessment 
after  the  time  for  the  statutory  appeal  has  expired, 
notwithstanding  he  has  not  appealed. 

Such  a  case  was  the  case  of  the  Commonwealth  of 
Pennsylvania  vs.  The  American  Tobacco  Company, 
173  Pennsylvania  State  Reports,  531  (1896). 

There  a  corporation  of  another  State,  having  no 
factory,  store,  office  or  other  place  of  business  in  the 


State  of  Pennsylvania,  but  selling  goods  in  this  State, 
was  assessed  with  a  mercantile  tax  as  a  dealer  doing 
business  in  this  State.  The  Court  of  Common  Pleas 
of  Philadelphia  County  gave  judgment  against  the 
company,  for  want  of  a  sufficient  affidavit  of  defence  ; 
but  the  Supreme  Court  reversed  the  judgment,  the 
late  Justice  Williams  saying :  "  The  learned  judge  did 
not  put  the  reasons  that  influenced  his  action  upon  the 
record  and  we  are  left  to  conjecture  as  to  what  they 
were.  It  may  be  that  he  regarded  the  assessment  of  the 
license  tax  as  wholly  unauthorized,  but  regarded  the 
failure  of  the  defendant  to  appeal  from  it  as  preclud- 
ing the  company  from  setting  up  any  defence  whatever 
to  this  action.  If  the  defendant  had  been  a  local  dealer 
within  the  County  of  Philadelphia,  regularly  assessed 
and  served  with  notice,  the  remedy  for  any  error  in 
the  assessment  would  have  been  by  appeal.  If  this 
had  been  neglected,  the  defendant  would  have  been 
precluded  by  such  neglect  from  defending  in  this 
action,  for  any  error  or  irregularity  that  could  have 
been  reached  on  an  appeal.  But  the  defendant  was 
not  subject  to  assessment  by  the  mercantile  appraiser. 
That  officer  was  without  any  authority  in  the  premises, 
and  his  unauthorized  act  imposed  no  liability  and  no 
duty  on  the  defendant." 

It  is  always  safer  and  better  not  to  sleep  upon  one's 
rights.  Vigilantibus  non  dormientibus  lex  subvenit. 
Still,  as  an  unconstitutional  act  is  not  a  law,  as  it  con- 


io8 

fers  no  rights  and  imposes  no  duties,  as  it  affords  no 
protection  and  creates  no  office,  as  it  is  in  legal  con- 
templation as  inoperative  as  though  it  had  never  been 
passed,  it  is  conceived  that  citizens  have  a  right  to  treat 
proceedings  under  the  Act  of  May  2,  1899,  as  nullities 
and  to  disregard  them. 

Whether  men,  wrongfully  claiming  to  be  created 
agents  of  the  law  under  that  act  and  wrongfully 
assuming  to  act  as  such  agents  of  the  law,  can  be  so 
treated  is  probably  a  more  doubtful  question,  as  they 
may  be  said  to  be  de  facto,  although  not  de  jure, 
officers.  The  question  of  the  authority  of  such  men 
can  be  better  and  more  safely  raised  by  quo  war- 
ran  to,  or  by  refusal  to  pay  them. 


Seventh. — Removal  and  Habeas  Corpus. 

The  merchant  may  prepare  to  leave  the  State  in 
search  of  a  land  of  saner  statutes,  and,  if  the  county 
treasurer  issues  an  attachment  for  him,  as  the  Act  of 
1899  provides  that  official  may,  the  merchant  may 
speedily  have  his  body  within  the  care  and  disposition 
of  the  courts  ;  for  even  the  upholders  of  this  legisla- 
tion can  scarcely  hope  successfully  to  maintain  that 
the  mercantile  appraisers  or  the  ward  constable  could 
declare  war,  that  the  county  treasurer  might  suspend 
the  writ  of  habeas  corpus. 

And  it  must  be  borne  in  mind,  in  connection  with 


109 

this  subject  of  removal,  that  dealers  from  other  States 
or  our  own  merchants  driven  out  of  the  State,  and  so 
depriving  our  community  of  their  enterprises,  and  our 
people  of  needed  employment,  are  perfectly  free  to 
sell  their  goods  here,  in  competition  with  those  who 
can  remain,  and  pay  no  mercantile  tax  whatever. 

The  Commonwealth  of  Pennsylvania  vs.  The  Ameri- 
can Tobacco  Company,  173  Pennsylvania  State  Re- 
ports, 531  (1896). 

Article  I,  Section  8,  of  the  Constitution  of  the 
United  States  reserves  to  Congress  the  right  to  regu- 
late commerce  among  the  several  States. 


INDEX. 


A. 

Advertising,  57,  58,  99 

Affidavit  by  dealer,  47,  51 

Affidavit  by  manufacturer  or  me- 
chanic, 97,  98 

Apothecaries,  78,  83 

Appeal,  98-105 

Assessment  by  Mercantile  Ap- 
praiser, 99 

Attachment  by  County  Treasurer, 
1 08 

Auditor  General,  35,  45-51,  57 

B. 

Bakers,  78,  83 
Bill  in  Equity,  95,  96 
Blanks  prepared  by  Auditor  Gen- 
eral, 47-5 1 

Board  of  Trade,  31,  32 
Books  of  Dealers,  45,  46,  49 
Bookbinders,  78,  83 
Butchers,  75,  78,  83 

C. 

Canners,  78,  83 

Caterers,  78,  83 

Chemists,  78,  83 

Cities,  Classification  of,  35-41 

City  fee  for  license,  88 

Class  legislation,  29 

Classification,  25,  31,  32,  35-41 

Clothing  Makers,  78,  83 

Coffee  Roasters,  78,83 

Confectioners,  77,  78,  83 

Constable,  57-59,  108 

Consumer,  27,  28 

County  Treasurer,  35,  45,  57,  108 


D. 

Dealers,  27,28,  31,32,69,  70 
Dealers  from  other  States,  109 
Defence  in  subsequent  suit  by  Com- 
monwealth, 105-108 
Delegation    of    Legislative    Func- 
tions, 45-53 
Dress  Makers,  78,  83 

E. 

Emoluments  of  Officers,  57-59 
Equality  of  Taxation,  30,  31 
Exchange,  31,  32 
Exemption,  52,  57,  89 

F. 

Farmers,  75,  77,  78,  83 
Fees  of  Officers,  57-59 
Florists,  78,  83 
Foreign  Dealers,  109 
Furriers,  78,  83 

G. 
Governor's  veto,  49 

H. 

Habeas  Corpus,  108,  109 
Hatters,  78,  83 

I. 
Ice-cream  Makers,  78,  83 

J- 

Jewelers,  78,  83 

L. 

Local  legislation,  35-41 
Locomotive  Makers,  69,  70,  74,  78, 

83 


I  12 


M. 

Manufacturers,  27,  28,  31,  32,  73-90 
Mechanics,  73-90 
Mercantile  Appraisers,  35-37,51-53, 

57,  89,  96-100,  108 
Millers,  75,  78,  83 
Milliners,  78,  83 

N. 

Notice  of  Classification  by  Mer- 
cantile Appraiser,  89,  90 

O. 

Occupation  tax,  23 
Opticians,  78,  83 

P. 

Paperhangers,  77,  78,  84 
Papers,  45,  46,  49 
Penalty  of  $i, coo,  46,  49,  52 
Photographers,  78,  84 
Plumbers,  75,  76,  78,  84 
Practice  on  Appeal  to    Court  of 

Common  Pleas,  102-105 
Private  Rights,  45~53 
Property,  Taxing  of,  24,  25,  28,  30 
Publishers,  78,  84 

Q- 
Quo  Warranto,  96 

R. 

Refusal  to  pay  men  claiming  to  be 
Mercantile  Appraisers,  96 

Remedies,  95-109 

Removal  from  State,  108,  109 

Repeal,  Acts  concerning  manu- 
facturers and  mechanics  not  re- 
pealed, 73 

Retailer,  26,  27,  31,  32 


S. 

Searches  and  seizures,  45,  46,  48,  49 
Seller,  Taxing  of,  24,  25 
Shirtmakers,  79,  84 
Shoemakers,  79,  84 
Signs  to  be  placed  on  places  of 

business,  63 

Special  Legislation,  35-41 
Stationers,  79,  84 
Summons,  Pretended,  52,  53 


T. 

Tailors,  76,  78,  83 

Tanners,  69,  70,  75,  79,  84 

Taxes  must  be  levied  and  collected 

under  general  laws,  41 
Taxing  power  of  State,  29,  30 
Title  of  Act,  58,  59,  63 
Tyrannical    invasions    of     private 

rights,  46 

U. 

Unconstitutional  act,  32 
Undertakers,  77,  79,  84 
Uniformity,  23-32 
Upholsterers,  79,  84 

V. 

Venders,  27,  28,  31,  32,  69,  70 
Veto  of  Governor,  49 

W. 

Ward  Constable,  57-59,  108 
Watchmakers,  79,  84 
Wholesalers,  26,  27,  31,  32 
Women,  Exemption  of,  89 


YC  23122 


